8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of

the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported)  March 27, 2009

Maui Land & Pineapple Company, Inc.

(Exact name of Registrant as Specified in Its Charter)

Hawaii	0-6510	99-0107542
(State or other jurisdiction	(Commission	(IRS Employer
of incorporation)	File Number)	Identification No)

120 Kane Street, P.O. Box 187, Kahului, Maui, Hawaii, 96733-6687

(Address of principal executive offices)

(808) 877-3351

(Registrant’s telephone number, including area code)

Not Applicable

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01.  Entry into a Material Definitive Agreement.

Concurrent with the sale of the Kapalua Plantation Golf Course (the “Golf Course”), as described below in Item 2.01, Maui Land & Pineapple Company, Inc., a Hawaii corporation (the “Company”), entered into an agreement to lease back the Golf Course, including the retail shop, from its purchaser for a period of two years at a fixed rental rate of $4.0 million per year (the “Ground Lease”).

The foregoing summary of the terms of the Ground Lease is not complete and is qualified in its entirety by reference to the full text of the Ground Lease, which is attached hereto as Exhibit 10.1.

Item 2.01.  Completion of Acquisition or Disposition of Assets.

As reported on March 17, 2009, the Company and its wholly owned subsidiary, Kapalua Land Company, Ltd, a Hawaii corporation (“KLC”), entered into that certain Sale, Purchase and Escrow Agreement (the “Purchase Agreement”) with TY Management Corporation, a Hawaii corporation (“Buyer”), pursuant to which, among other things, the Company and KLC agreed to sell the Golf Course and all improvements, structures and fixtures on the Golf Course to Buyer for $50 million in cash (the “Transaction”).

On March 27, 2009, the Transaction was consummated.  In addition to the Ground Lease described in Item 1.01 above, concurrent with the closing of the Transaction, the Company entered into an agreement to lease back the portion of the Plantation Clubhouse comprising the retail shop for a period of five years, which will commence after the Ground Lease expires or is terminated.  Proceeds from the sale were used to reduce borrowings under the Company’s line of credit agreement with Wells Fargo Bank, and certain other lenders, by $45 million.

The foregoing summary of the terms of the Purchase Agreement is not complete and is qualified in its entirety by reference to the full text of the Purchase Agreement, which is attached hereto as Exhibit 2.1.

Item 9.01.  Financial Statements and Exhibits.

(d)           Exhibits.

Exhibit Number	Description
2.1	Sale, Purchase and Escrow Agreement among Maui Land & Pineapple Company, Inc., Kapalua Land Company, Ltd., TY Management Corporation and Title Guaranty Escrow Services, Inc, dated March 17, 2009.
10.1	Plantation Golf Course Lease made and entered into effective March 27, 2009.

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	MAUI LAND & PINEAPPLE COMPANY, INC.
Date: April 1, 2009	By:	/s/ Robert I. Webber
		Robert I. Webber
		President and Chief Executive Officer

EXHIBIT INDEX

Exhibit Number	Description
2.1	Sale, Purchase and Escrow Agreement among Maui Land & Pineapple Company, Inc., Kapalua Land Company, Ltd., TY Management Corporation and Title Guaranty Escrow Services, Inc, dated March 17, 2009.
10.1	Plantation Golf Course Lease made and entered into effective March 27, 2009.

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EX-2.1

Exhibit 2.1

SALE, PURCHASE AND ESCROW AGREEMENT

This Sale, Purchase and Escrow Agreement (this “Agreement”), dated as of March 17, 2009 (the “Effective Date”), is made by and among MAUI LAND & PINEAPPLE COMPANY, INC., a Hawaii corporation (“MLP”), KAPALUA LAND COMPANY, LTD., a Hawaii corporation (“KLC” and collectively with MLP, “Seller”), and TY MANAGEMENT CORPORATION, a Hawaii corporation (“Purchaser”), and constitutes (i) a contract of sale and purchase between the parties and (ii) an escrow agreement among Seller, Purchaser and TITLE GUARANTY ESCROW SERVICES, INC. (“Escrow Agent”), the consent of which appears at the end hereof.

RECITALS:

A.MLP is the owner of the Land (as defined below) and KLC is the owner of the Improvements (as defined below).

B.Subject to the terms and conditions set forth in this Agreement, Seller desires to sell to Purchaser and Purchaser desires to purchase from Seller, the Golf Course (as defined below).

NOW, THEREFORE, in consideration of the premises and of the mutual covenants of the parties hereinafter expressed, it is hereby agreed as follows.

ARTICLE 1

PURCHASE AND SALE

1.1Agreement of Purchase and Sale.  In consideration of the covenants herein contained, Seller hereby agrees to sell and Purchaser hereby agrees to purchase the following:

1.1.1Those certain parcels containing approximately 263.422 acres of land located in the County of Maui, State of Hawaii as more particularly described on Exhibit A attached hereto and made a part hereof (“Land”) commonly referred to as the “Kapalua Plantation Golf Course” and all improvements, structures and fixtures (collectively, the “Improvements”) thereon (the Land and Improvements are collectively the “Real Property”);

1.1.2All of Seller’s right, title and interest in and to all tangible personal property upon the Land or within the Improvements, excluding the Excluded Assets (defined below) and those other items of personal property used exclusively in connection with the operation of the Land and the Improvements as set forth on Exhibit B (collectively, the “Personal Property”);

1.1.3All of Seller’s right, title and interest in and to all intangible personal property relating solely to ownership and operation of the Land and Improvements, excluding the Excluded Assets, but including approvals and permits belonging and appertaining to the Real Property, plans and specifications pertaining to the Improvements, all “Plantation” trademarks and any other words, names, devices, symbols, logos, slogans, designs, brands, service marks, trade names, other distinctive features, or any combination of the foregoing, whether registered or unregistered, used by Seller in connection with the ownership and operation of the Land and Improvements, including the goodwill pertaining thereto.

1.1.4All of Seller’s right, title and interest in and to (i) all assignable equipment leases, service contracts, management agreements and other contracts and agreements listed and described on Exhibit C relating to the upkeep, repair, maintenance or operation of the Land, Improvements or Personal Property which will extend beyond the Closing Date (as defined in Section 6.1) and (ii) all assignable existing warranties and guaranties issued to Seller in connection with the Improvements or the Personal Property (collectively, the “Contracts”); and

1.1.5All of Seller’s right, title and interest in and to that certain restaurant lease, between Plantation Club Associates, as landlord, and Roy E. Dunn, as tenant, (the “Restaurant Lessee”), dated February 7, 1991, as amended by that certain (i) Amendment and Assignment of Plantation Golf Course Clubhouse Lease; Consent of Landlord dated June 19, 1992, (ii) lease extension letter dated March 8, 1996; (iii) Second Amendment to Lease dated May 6, 2002; (iv) Third Amendment to Lease dated February 18, 2003; (v) Fourth Amendment to Lease dated February 14, 2005; and (vi) letter from Roy E. Dunn regarding exercise of an option to renew dated December 2, 2005 (as amended, the “Restaurant Lease”).

1.2Excluded Assets.  The following items  (collectively, the “Excluded Assets”) shall not be included in the definition of “Golf Course,” shall be specifically excluded from the transfer contemplated herein and shall not be conveyed to Purchaser pursuant to the terms hereof:

1.2.1All property owned by Seller or any of its affiliates, not normally located at the Golf Course and used, but not exclusively, in connection with the operation of the Golf Course;

1.2.2All (a) computer software and accompanying documentation (including all future upgrades, enhancements, additions, substitutions and modifications thereof), other than that which is commercially available, which are used by Seller or any affiliate thereof in connection with the property management system, the reservation system, and all future electronic systems developed by Seller or any affiliate thereof for use with respect to the Golf Course, (b) all manuals, brochures, directives, policies, programs and other information issued by Seller, or any of its affiliates, or otherwise used in the operation of the Golf Course, (c)  employee records which must remain confidential either under applicable legal requirements or under reasonable corporate policies of Seller or any affiliate thereof, (d) any right, title or interest in or any goodwill associated with any name containing the name “Kapalua” or any combination or variation thereof and any related trademarks and any other related words, names, devices, symbols, logos, slogans, designs, brands, service marks, trade names, other distinctive features, or any combination of the foregoing, whether registered or unregistered, used by Seller or any of its affiliates, (e) all trade secrets, confidential information and all other information, materials, and copyrightable or patentable subject matter developed, acquired, licensed or used by Seller or any affiliate thereof, including, without limitation, materials relating to sales and marketing programs, revenue and inventory management programs, processes or systems, brand and pricing strategies, business and technology plans, and research and development reports, and (f) any information or agreements considered confidential or proprietary in nature under an agreement between Seller or any of its affiliates and any other parties, including, but not limited to, lenders, vendors, suppliers or prior owners.  The foregoing shall apply regardless of the form or medium involved (e.g., paper, electronic, tape, tangible or intangible);

1.2.3All inventory for retail sale, all rental clubs, driving range balls, and any other inventory or items owned by Seller and sold from the golf pro shop located on the Land;

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1.2.4All personal property owned by the Restaurant Lessee under the Restaurant Lease, including, without limitation, the furnishings and moveable equipment situated in the Restaurant Lease premises, all glassware, china, utensils, inventories and the liquor license;

1.2.5Any capital reserve, personal property reserve and/or tax and insurance escrow for the Golf Course, whether held for the benefit of the holder of a mortgage, loan, deed of trust or other security instrument with respect to the Golf Course; and

1.2.6Working capital associated with or set aside with respect to the Golf Course.

1.3Golf Course Defined.  The property described in Section 1.1 is referred to collectively as the “Golf Course.”

ARTICLE 2

PURCHASE PRICE

2.1Price.  Seller shall sell and Purchaser shall purchase the Golf Course for a total purchase price of Fifty Million Dollars ($50,000,000) (the “Purchase Price”), as allocated, pursuant to the agreement of Seller and Purchaser, between real and personal property in accordance with Schedule 1 attached hereto and made a part hereof.  Purchaser shall, at least two (2) business days prior to Closing (as defined below), deliver to Escrow Agent, by bank wire transfer of immediately available funds, a sum equal to the Purchase Price.

ARTICLE 3

CONDITIONS TO THE PARTIES’ OBLIGATIONS

3.1Conditions to Purchaser’s Obligation to Purchase.  Purchaser’s obligation to purchase is expressly conditioned upon the satisfaction, or waiver in writing by Purchaser, of each of the following:

3.1.1Performance by Seller.  Performance in all material respects of the obligations and covenants of, and deliveries required of, Seller hereunder.

3.1.2Delivery of Title and Possession.  Delivery at the Closing of (i) the Deed (as defined in Section 4.2.1) and other documents to be delivered by Seller pursuant to Section 4.2 below, and (ii) possession as provided in Section 15.1.

3.1.3Title Insurance.  Delivery at the Closing of the current form of eight (8) American Land Title Association extended coverage owner’s policies of title insurance (the “Title Policy”), or an irrevocable commitment to issue the same issued by First American Title Insurance Company (the “Title Company”), consistent in all material respects with a commitment for title insurance issued by Title Company, together with copies of all documents referred to as exceptions therein, containing as encumbrances only those certain encumbrances described in the Deed (as defined below) as “Permitted Encumbrances” and those certain encumbrances described in the New Easements (as defined below) (collectively, the “Title Commitment”).

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3.1.4Seller’s Representations.  The representations and warranties by Seller set forth in Section 11.1 being true and correct in all material respects as of the Closing.

3.1.5Existing Ground Lease.  Seller having terminated and released of record that certain Plantation Course Lease, dated May 7, 1992 between MLP, as Lessor, and KLC, as Lessee, recorded in the Bureau of Conveyances of the State of Hawaii as Document No. 92-079742, as amended by that certain (i) Amendment of the Plantation Course Lease to Withdraw Lot 51 dated December 4, 1995, recorded in the Bureau of Conveyances of the State of Hawaii as Document No. 95-166080, and (ii) as partially assigned by Assignment of Lease dated December 19, 1995, recorded in the Bureau of Conveyances of the State of Hawaii as Document No. 96-000274 (the “Ground Lease Termination”).

3.1.6Lease Agreement.  Execution and delivery by Kapalua Plantation Golf LLC of a lease agreement (the “Lease Agreement”), wherein it will lease the Golf Course after the Closing Date, substantially in the form attached hereto as Exhibit E.

3.1.7License Agreements.

(a)Execution and delivery by MLP of a license agreement (the “Seller’s License Agreement”), wherein certain intellectual property rights associated with the “Kapalua” name will be licensed to Purchaser, substantially in the form attached hereto as Exhibit F.

(b)Execution and delivery by Purchaser of a license agreement (the “Purchaser’s License Agreement”), wherein certain intellectual property rights associated with the “Plantation” name will be licensed to MLP (or KLC), substantially in the form of Exhibit G.

(c)The Seller’s License Agreement, and the Purchaser’s License Agreement, are hereinafter sometimes collectively called the “License Agreement.”

3.1.8Partial Assignment and Assumption of Second Amended and Restated Golf Course Use Agreement.  Execution and delivery by MLP (or an affiliate) of a Partial Assignment and Assumption of Second Amended and Restated Golf Course Use Agreement (the “Partial Assignment and Assumption of Second Amended and Restated Golf Course Use Agreement”), the terms, substantially in the form attached hereto as Exhibit H.

3.1.9Water Delivery Agreement.  Execution and delivery by MLP of an Agreement for the Delivery of Water (Kapalua Plantation Golf Course) (the “Water Supply Agreement”) pursuant to which water for use in the operation of the Golf Course will be provided, substantially in the form attached hereto as Exhibit I.

3.1.10Golf Facilities Easement.  Execution and delivery by MLP of a Grant of Easement (Golf Course Facilities) regarding the use of the Maintenance Facility, Storage Facility and Dumping Ground on Lot 42 (the “Golf Facilities Easement”) in substantially the form attached hereto as Exhibit J.

3.1.11Assignment of Easements.  Execution and delivery by MLP of an Assignment of Easements and Agreements regarding the STP easement, the golf path encroachment

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agreements and other easements (the “Assignment of Easements”) in substantially the form attached hereto as Exhibit K.

3.1.12CC&Rs.  Execution and delivery by MLP of covenants, conditions and restrictions regarding future utility and similar easements and restrictions on the use and development of the Golf Course (the “CC&Rs”), in substantially the form attached hereto as Exhibit L.

3.1.13Right of First Offer.  Execution and delivery by MLP of a right of first offer agreement (the “ROFO Agreement”) with respect to that certain golf course commonly referred to as “The Bay Course” and all improvements, structures and fixtures thereon in substantially the form attached hereto as Exhibit M.

3.1.14Right of First Refusal.  Execution and delivery by MLP of a right of first refusal agreement (the “ROFR Agreement”) with respect to the Golf Course and all improvements, structures and fixtures thereon in substantially the form attached hereto as Exhibit N.

3.1.15Assignment of Contracts.  Execution and delivery by MLP and KLC of an Assignment of Contracts (the “Assignment of Contracts”) in substantially the form attached hereto as Exhibit O.

3.1.16Assignment of Restaurant Lease.  Execution and delivery by MLP of an Assignment of Landlord’s Interest in Restaurant Lease (the “Assignment of Restaurant Lease”) in substantially the form attached hereto as Exhibit P.

3.1.17Related Agreements.  The execution and/or delivery by Seller, as applicable, of those certain agreements listed in Section 4.2 below.

3.1.18Post-Closing Agreement.  Execution and delivery by MLP of a Post-Closing Agreement (the “Post-Closing Agreement”) in substantially the form attached hereto as Exhibit Q.

3.1.19Restaurant Lease Estoppel Certificate.  Execution and delivery by the Restaurant Lessee of an estoppel certificate executed by the Restaurant Lessee in the Form of Exhibit R.

3.1.20Ritz-Carlton Estoppel Certificate.  Execution and delivery of estoppel certificates for the Second Amended and Restated Golf Course Use Agreement (the “Ritz-Carlton Estoppel Certificate”) executed by W2005 Kapalua/Gengate Hotel Realty, L.L.C. and The Ritz-Carlton Hotel Company, L.L.C. in substantially the forms attached hereto as Exhibit S-1 and Exhibit S-2, respectively (collectively, the “Ritz-Carlton Estoppel Certificate”).

3.1.21Association Estoppel Certificates.  Two (2) copies of an estoppel certificate executed by the Kapalua Resort Association (the “Kapalua Resort Association Estoppel Certificate”) substantially in the form of Exhibit T-1 attached hereto and two (2) copies of an estoppel certificate executed by the Plantation Estates Lot Owners’ Association (the “Plantation Estoppel Certificate”) substantially in the form of Exhibit T-2 attached hereto.

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3.1.22Nondisturbance Agreement.  Execution and delivery of a Nondisturbance Agreement executed by Wells Fargo Bank, N.A. with respect to the Water Supply Agreement and the Lot 42 Agreement (the “Nondisturbance Agreement”) in substantially the form attached hereto as Exhibit U.

3.1.23Reliance Letter.  Execution and delivery of a reliance letter executed by Bureau Veritas North America, Inc. (the “Reliance Letter”) in substantially the form attached hereto as Exhibit V.

3.1.24Will Serve Letter.  Execution and delivery of a “will serve” letter (the “Will Serve Letter”) signed by Kapalua Water Company, Ltd. in the form of Exhibit W.

3.1.25Agreement Regarding Kapalua Club.  Execution and delivery by MLP of a Golf Course Use Agreement (Kapalua Club) (the “Agreement Regarding Kapalua Club”) in substantially the form attached hereto as Exhibit X.

3.1.26Wells Fargo Mortgage Release.  Execution and delivery of a recordable partial release of that certain mortgage in favor of Wells Fargo Bank, N.A. affecting the Real Property.

3.1.27UCC-1 Termination.  Execution and delivery of a UCC amendment terminating that certain Wells Fargo UCC-1 Financing Statement in favor of Wells Fargo Bank, N.A. as to the Golf Course.

3.1.28New Easements.  Execution, delivery and recordation of the following new easements (collectively, the “New Easements”):  (a) Grant of Underground Waterline Easement from Seller to Kapalua Water Company, Ltd., affecting certain existing designated waterline easements within the Land in substantially the form attached hereto as Exhibit EE-1; (b) Grant of Reservoir, Waterline and Well Development Easement from Seller to Purchaser in substantially the form attached hereto as Exhibit EE-2; (c) Grant of Underground Waterline Easement from Plantation Club Associates to Purchaser in substantially the form attached hereto as Exhibit EE-3; (d)  Grant of Underground Waterline Easement from Honolua Ridge LLC to Purchaser in substantially the form attached hereto as Exhibit EE-4; (e) (Reserved); (f)  Grant of Drainage Easement from Seller to Purchaser in substantially the form attached hereto as Exhibit EE-6; (g) Grant of Drainage Easement from Plantation Club Associates to Purchaser in substantially the form attached hereto as Exhibit EE-7; (h) Grant of Drainage Easement from KLC to Purchaser in substantially the form attached hereto as Exhibit EE-8; (i) Grant of Drainage Easement from Purchaser to Seller in substantially the form attached hereto as Exhibit EE-9; and (j) Grant of Trail Easement from Purchaser to Kapalua Resort Association in substantially the form attached hereto as Exhibit EE-10.

3.1.29Side Letter Regarding Lease.  Execution and delivery by Kapalua Plantation Golf LLC of a side letter regarding the Lease extension (the “Lease Side Letter”) in substantially the form attached hereto as Exhibit FF.

3.2Conditions to Seller’s Obligation to Sell.  Seller’s obligation to sell is expressly conditioned upon satisfaction or waiver by Seller in writing of each of the following:

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3.2.1Performance by Purchaser.  Performance in all material respects of the obligations and covenants of, and deliveries required of, Purchaser hereunder.

3.2.2Receipt of Purchase Price.  Receipt of the Purchase Price and any adjustments due Seller under Article 7 at the Closing in the manner herein provided.

3.2.3Purchaser’s Representations.  The representations and warranties by Purchaser as set forth in Section 11.2 being true and correct in all material respects as of the Closing.

3.2.4Related Agreements.  The execution and/or delivery, as applicable, by Purchaser of those certain agreements listed in Section 4.1 below.

ARTICLE 4

PURCHASER’S DELIVERIES AND SELLER’S DELIVERIES TO ESCROW AGENT

4.1Purchaser’s Deliveries.  Purchaser shall, at or before the Closing, deliver to Escrow Agent each of the following:

4.1.1Purchase Price.  The Purchase Price as set forth in Article 2.

4.1.2Closing Statement.  An executed settlement statement reflecting the prorations and adjustments required under Article 7.

4.1.3Lease Agreement.  Four (4) executed counterparts of the Lease Agreement, the memorandum thereof and the guaranty thereof.

4.1.4License Agreement.  Four (4) executed counterparts of (a) the Purchaser’s License Agreement and (b) the Seller’s License Agreement.

4.1.5Partial Assignment and Assumption of Second Amended and Restated Golf Course Use Agreement.  Four (4) executed counterparts of the Partial Assignment and Assumption of Second Amended and Restated Golf Course Use Agreement.

4.1.6Water Supply Agreement.  Four (4) executed counterparts of the Water Supply Agreement.

4.1.7Golf Facilities Easement.  Four (4) executed counterparts of the Golf Facilities Easement.

4.1.8Assignment of Easements.  Four (4) executed counterparts of the Assignment of Easements.

4.1.9ROFO Agreement.  Four (4) executed counterparts of the ROFO Agreement and of the memorandum thereof.

4.1.10ROFR Agreement.  Four (4) executed counterparts of the ROFR Agreement and of the memorandum thereof.

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4.1.11Assignment of Contracts.  Four (4) executed counterparts of the Assignment of Contracts.

4.1.12Assignment of Restaurant Lease.  Four (4) executed counterparts of the Assignment of Restaurant Lease.

4.1.13Post-Closing Agreement.  Four (4) executed counterparts of the Post-Closing Agreement.

4.1.14Agreement Regarding Kapalua Club.  Four (4) executed counterparts of the Agreement Regarding Kapalua Club.

4.1.15New Easements.  Four (4) executed counterparts of each of the New Easements.

4.1.16Lease Side Letter.  Four (4) executed counterparts of the Lease Side Letter.

4.1.17Authorization Documents Required by the Title Company.  Such documents or instruments reasonably required by the Title Company concerning Purchaser’s due authorization and execution of the closing documents required to convey the Golf Course pursuant to this Agreement or reasonably requested by Escrow Agent required to close the transactions contemplated hereby.

4.2Seller’s Deliveries.  Either or both of MLP and/or KLC, as applicable, at or before the Closing, shall deliver to Escrow Agent each of the following:

4.2.1Deed.  Four (4) executed copies of the Warranty Deed (the “Deed”) with respect to the Real Property in substantially the form of Exhibit Y, pursuant to which Seller shall convey title to the Real Property subject only to the following (collectively, the “Permitted Encumbrances”): (i) non-delinquent real property taxes and all assessments and unpaid installments thereof which are not delinquent; (ii) the Restaurant Lease, and the rights of possession of the Restaurant Lessee thereunder; (iii) all exceptions to title contained or disclosed in the Title Commitment; (iv) any other lien, encumbrance, easement or other exception or matter voluntarily imposed or consented to in writing by Purchaser prior to or as of the Closing; and (v) the New Easements.

4.2.2Bill of Sale.  Four (4) executed copies of a bill of sale (the “Bill of Sale”) in substantially the form of Exhibit Z, with respect to the Personal Property.

4.2.3Lease Agreement.  Four (4) executed counterparts of the Lease Agreement, the memorandum thereof and the guaranty thereof.

4.2.4License Agreement.  Four (4) executed counterparts of (a) the Purchaser’s License Agreement and (b) the Seller’s License Agreement.

4.2.5Partial Assignment and Assumption of Second Amended and Restated Golf Course Use Agreement.  Four (4) executed counterparts of the Partial Assignment and Assumption of Second Amended and Restated Golf Course Use Agreement.

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4.2.6Water Supply Agreement.  Four (4) executed counterparts of the Water Supply Agreement.

4.2.7Golf Facilities Easement.  Four (4) executed counterparts of the Golf Facilities Easement.

4.2.8Assignment of Easements.  Four (4) executed counterparts of the Assignment of Easements.

4.2.9CC&Rs.  Four (4) executed originals of the CC&Rs.

4.2.10ROFO Agreement.  Four (4) executed counterparts of the ROFO Agreement and of the memorandum thereof.

4.2.11ROFR Agreement.  Four (4) executed counterparts of the ROFR Agreement and of the memorandum thereof.

4.2.12Assignment of Contracts.  Four (4) executed counterparts of the Assignment of Contracts, and (whether through the closing escrow or through such other method of delivery as the parties may establish) original executed leases (or copies if originals are not in Seller’s possession) and tenant files in the possession of Seller and the contracts assigned thereby, together with any and all consents that may be required from the counterparties to such leases and Contracts.

4.2.13Assignment of Restaurant Lease.  Four (4) executed counterparts of the Assignment of Restaurant Lease.

4.2.14Notice to Tenant.  A notice signed by Seller addressed to the Restaurant Lessee in the form of Exhibit AA.

4.2.15Restaurant Lease Estoppel Certificate.  Two (2) copies of the Restaurant Lease Estoppel Certificate.

4.2.16Association Estoppel Certificates.  Two (2) copies of the Kapalua Resort Association Estoppel Certificate and two (2) copies of the Plantation Estoppel Certificate.

4.2.17Ritz-Carlton Estoppel Certificate.  Two (2) copies of the Ritz-Carlton Estoppel Certificate executed by Seller, W2005 Kapalua/Gengate Hotel Realty, L.L.C. and The Ritz-Carlton Hotel Company, L.L.C.

4.2.18Nondisturbance Agreement.  Four (4) copies of the Nondisturbance Agreement executed by Wells Fargo Bank, N.A. with respect to the Water Supply Agreement and the Lot 42 Agreement.

4.2.19Reliance Letter.  Two (2) copies of the Reliance Letter executed by Bureau Veritas North America, Inc.

4.2.20Will Serve Letter.  Two (2) copies of the Will Serve Letter signed by Kapalua Water Company, Ltd.

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4.2.21FIRPTA/HARPTA Affidavits.  One (1) executed copy of an affidavit in the form of Exhibits BB-1 and BB-2 with respect to the Foreign Investment in Real Property Tax Act and one (1) executed copy of an affidavit in the form of Exhibits CC-1 and CC-2.

4.2.22Notice of Mortgage, Pledge or Purchase (Hawaii Tax Form D-37).  One (1) executed Hawaii Tax Form D-37 unless previously filed by Purchaser with the Hawaii Department of Taxation.

4.2.23Conveyance Tax Certificate (Hawaii Tax Form P-64A) for the Deed.  One (1) executed Hawaii Tax Form P-64A.

4.2.24Assignment of Trade Names (Hawaii DCCA Form T-4).  One (1) executed Hawaii DCCA Form T-4 for “The Plantation Club Golf Course” trade name and one (1) executed Hawaii DCCA Form T-4 for “The Plantation Course” trade name.

4.2.25Ground Lease Termination.  Two (2) executed Ground Lease Terminations.

4.2.26Wells Fargo Mortgage Release.  An executed and recordable partial release of that certain mortgage in favor of Wells Fargo Bank, N.A. affecting the Real Property.

4.2.27UCC-1 Termination.  A UCC amendment terminating that certain Wells Fargo UCC-1 Financing Statement in favor of Wells Fargo Bank, N.A. as to the Golf Course.

4.2.28Post-Closing Agreement.  Four (4) executed counterparts of the Post-Closing Agreement.

4.2.29Agreement Regarding Kapalua Club.  Four (4) executed counterparts of the Agreement Regarding Kapalua Club.

4.2.30Closing Statement.  An executed settlement statement reflecting the prorations and adjustments required under Article 7.

4.2.31New Easements.  Four (4) executed counterparts of each of the New Easements.

4.2.32Lease Side Letter.  Four (4) executed counterparts of the Lease Side Letter.

4.2.33Authorization Documents Required by the Title Company.  Such documents or instruments reasonably required by the Title Company concerning Seller’s due authorization and execution of the closing documents required to convey the Golf Course pursuant to this Agreement, including Form B and Form D or reasonably requested by Escrow Agent required to close the transactions contemplated hereby.

4.3Failure to Deliver.  The failure of Purchaser or Seller to make any delivery required in accordance with this Article 4, which is not waived by the other party, shall constitute a default hereunder by Purchaser or Seller, as applicable; provided, however, that:

(a)Seller’s failure to deliver either of those items described in Sections 4.2.16 and 4.2.17 shall not constitute a default hereunder by Seller nor give rise to any

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Purchaser termination rights hereunder and the applicable provisions of the Post-Closing Agreement shall apply with respect to such event; and

(b)If Seller is unable to deliver any of those items described in Sections 4.2.18, 4.2.26, or 4.2.27 by the Closing Date, the Closing Date shall be extended until such date as Seller is able to deliver such items, provided that if Seller does not deliver such items by the 30th day after the initially-scheduled Closing Date, Purchaser may at any time thereafter elect to terminate this Agreement.  Upon termination pursuant to this Section 4.3(b), Seller shall pay to Purchaser an amount, not to exceed $1,000,000, equal to Purchaser’s total actual legal fees and due diligence expenses incurred in connection with this purchase, and thereafter neither Seller nor Purchaser shall have any further liability or obligations in connection with this Agreement or such termination.  Seller and Purchaser acknowledge and agree that they have freely agreed to such a payment as liquidated damages which are fair and reasonable under the particular circumstances of this transaction, and not as a penalty.

ARTICLE 5

INVESTIGATION OF REAL PROPERTY

5.1Delivery of Documents.  Seller has delivered to Purchaser, the following:

5.1.1Title Commitment.  A copy of the Title Commitment.

5.1.2Leases and Contracts.  Copies of the Restaurant Lease and any service contracts, equipment leases, maintenance agreements and other contracts, if any, listed in the Assignment of Contracts.

5.1.3Plans and Specifications.  To the extent in Seller’s possession, copies of all plans and specifications for the Improvements.

5.1.4Reports.  To the extent in Seller’s possession, copies of all environmental reports, geological reports, engineering reports and archeological reports (if any) prepared by third parties.

5.1.5Permits.  To the extent in Seller’s possession, copies of all governmental permits, certificates of occupancy, site plan approvals, zoning approvals and other approvals, including, without limitation, all development permits, approvals, agreements and entitlements, in each case regarding the Real Property.

5.1.6Operating Statements.  To the extent in Seller’s possession, copies of operating statements with respect to the Golf Course generated by Seller in its ordinary course of business with respect to the previous three (3) calendar years.

5.1.7Property Tax Bills.  To the extent in Seller’s possession, a copy of the current property tax bill and any assessment notices for the current tax fiscal year.

5.1.8Notices of Violation, Litigation.  To the extent in Seller’s possession, copies of any notices of uncured violations issued by any governmental authority as well as copies of any

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pleadings relating to litigation regarding the Golf Course to the extent any of the foregoing could be binding upon the Golf Course or Purchaser following Closing.

If requested by Seller, Purchaser shall provide written verification of its receipt of those items listed in this Section 5.1.

5.2Physical Inspection of the Real Property.

5.2.1Seller shall allow Purchaser and Purchaser’s engineers, architects or other employees, consultants and agents reasonable access to the Real Property during normal business hours for the limited purposes provided herein.

5.2.2Purchaser and its engineers, architects and other employees, consultants and agents may exercise such access solely for the purposes of (i) reviewing contracts, tenant files, books and records relating to the Real Property (other than any privileged, proprietary or confidential records), soil reports, environmental studies and reports, surveys, and building and systems plans; (ii) reviewing soils records relating to operating and capital expenses and other instruments and correspondence relating to the Real Property; and (iii) inspecting the physical condition of the Real Property and conducting non-intrusive physical and environmental tests and inspections thereof.  PURCHASER SHALL NOT CONDUCT OR ALLOW ANY PHYSICALLY INTRUSIVE TESTING OF, ON OR UNDER THE REAL PROPERTY WITHOUT FIRST OBTAINING SELLER’S WRITTEN CONSENT (WHICH SELLER MAY GIVE OR WITHHOLD IN ITS SOLE DISCRETION) AS TO THE TIMING AND SCOPE OF THE WORK TO BE PERFORMED AND THE PARTIES ENTERING INTO AN AMENDMENT HERETO MEMORIALIZING SUCH SCOPE OF WORK AND ANY ADDITIONAL AGREEMENTS OF THE PARTIES WITH RESPECT TO SUCH TESTING.

5.2.3Purchaser agrees that, in the exercise of the right of access granted hereby, it will not unreasonably interfere with or permit unreasonable interference with any person occupying or providing service at the Golf Course.  Purchaser agrees that it or its agents will not communicate with any tenants without the consent of Seller.

5.2.4Purchaser agrees to indemnify, defend and hold harmless Seller and its affiliates, subsidiaries, shareholders, officers, directors and agents from any loss, injury, damage, claim, lien, cost or expense, including reasonable attorneys’ fees and costs (collectively, “Claims”), arising out of or relating to the exercise by Purchaser or its employees, consultants, agents or representatives of the right of access under this Agreement, including, without limitation, any entry on the Golf Course in the course of performing the inspections, testings, or inquiries provided for in this Agreement, excluding, however, any Claim arising out of (i) the gross acts or omissions of Seller or its affiliates, agents or employees or (ii) the mere discovery of an existing condition at or affecting the Golf Course.  The indemnity in this Section 5.2.4 shall survive the Closing or any earlier termination of this Agreement.

5.2.5Purchaser agrees to give Seller prior notice, not less than forty-eight (48) hours prior to the date of any requested inspection or test (or earlier if required by law or pursuant to the provision of any leases), of its intent to conduct any inspections or tests so that Seller will have the opportunity to have a representative present during any such inspection or test, the right to do so which Seller expressly reserves.  Purchaser agrees to cooperate with any reasonable request by Seller in connection with the timing of any such inspection or test.  Subject to the provisions of

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Section 5.2, Seller agrees to use commercially reasonable efforts to facilitate and cooperate with Purchaser’s conduct of its investigations of or at the Real Property at no material cost to Seller.

5.2.6Purchaser agrees that any inspection, test or other study or analysis of the Real Property shall be performed at Purchaser’s expense and in strict accordance with applicable law.

5.2.7Purchaser agrees at its own expense to promptly repair or restore the Real Property, or, at Seller’s option, to reimburse Seller for any reasonable repair or restoration costs, if any inspection or test requires or results in any damage to or alteration of its condition.  The obligations set forth in this Section 5.2.7 shall survive the Closing or earlier termination of this Agreement.

5.3No Obligation to Cure.  Nothing contained in this Agreement or otherwise shall require Seller to remove or correct any exception or matter disapproved by Purchaser or to spend any money or incur any expense in order to do so; provided, however, that Seller agrees to remove any lien or mortgage the amount of which is liquidated and which has been placed on the Real Property with the approval or consent of Seller and any mechanics lien placed on the Real Property pursuant to works of improvement duly authorized by Seller, provided that Seller may remove any such mechanics lien by causing or enabling the Title Company to irrevocably commit to issuing the Title Policy to Purchaser and its lender, if any, without taking exception for any such lien.

ARTICLE 6

THE CLOSING

6.1Date and Manner of Closing.  Escrow Agent shall close the escrow (the “Closing”) as soon as all conditions to closing contained in this Agreement have been satisfied, which shall in any event be not later than 10:00 a.m. Hawaii time on March 27, 2009 (the “Closing Date”), time being of the essence, subject only to Seller’s express rights provided in Section 4.3(b) and Section 13.4, by recording and delivering all documents and funds as set forth in Article 8.

ARTICLE 7

PRORATION, FEES, COSTS AND ADJUSTMENTS

7.1Revenue and Expense Allocations.

7.1.1The following items shall be allocated or prorated at Closing as follows:

(a)Real property taxes for the then current tax fiscal year based upon the latest available tax bills or assessment information.  Such proration shall be calculated based upon the actual number of days in the tax year, with Seller being responsible for that portion of such tax year occurring on and prior to the Closing Date and Purchaser being responsible for that portion of such tax year occurring after the Closing Date.

(b)Special taxes, assessments or water and sewer capacity charges, if any, upon the Golf Course shall be paid by Seller at Closing.

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(c)Fuel, electricity, water, sewer, gas, electric, telephone and other utility charges and assigned deposits.  Such proration shall be calculated based upon the actual number of days in the current billing period, with Seller being responsible for that portion of such billing period occurring on and prior to the Closing Date and Purchaser being responsible for that portion of such billing period occurring after the Closing Date.

(d)Purchaser shall receive credit at the Closing for the following:  (i) security deposit received by Seller for the Restaurant Lease in the amount of Ten Thousand Dollars ($10,000); (ii) the prorated portion of any advance rents allocable to the period after the Closing Date and received by Seller from the Restaurant Lessee; and (iii) any unpaid utility charges (including, but not limited to, telephone, electric power, steam, heat, gas, cable TV, water and sewer and any other utility charges) prorated for the period prior to the Closing Date.

(e)Seller shall be responsible for and pay for all other taxes attributable to the ownership and operation of the Golf Course for the period of time prior to the Closing Date.

7.1.2Following the Closing, all employees of Seller shall remain employees of Seller and Purchaser shall have no responsibility with respect to such employees.  Without limiting the generality of the foregoing:

(a)Seller shall be responsible for all wages and other amounts owed to employees of Seller providing services for the Golf Course and all wages and amounts due to employees that do not provide services exclusively on account of the Golf Course.

(b)With respect to hourly employees, Seller shall be responsible for (a) wages of hourly employees; (b) employment and withholding taxes for such employees; and (c) accrued vacation and required contributions to health, pension and other benefit plans for such employees.

(c)With respect to salaried employees, Seller shall be responsible for salaries, employment and withholding taxes, accrued vacation and other employment benefits for salaried employees.

(d)Seller shall hold expenses for pension expenses for eligible employees.

(e)Seller shall be responsible for (a) severance or separation payments, (b) sick pay, and (c) “hospitalization pay,” if any.

7.2Reconciliation and Post-Closing Adjustments.  Except as otherwise provided herein, any item to be allocated or prorated that cannot be ascertained with certainty as of the Closing Date shall be prorated on the basis of the parties’ reasonable estimate of such amount, and shall be the subject of a final proration within ninety (90) days after Closing, or as soon thereafter as a precise amount can be ascertained.  Purchaser shall promptly notify Seller when it becomes aware that any such actual amount has been ascertained.  Once all such items have been ascertained, Purchaser shall prepare a final proration statement which shall be subject to Seller’s approval.  Upon Seller’s acceptance and approval of any such final proration statement, such statement shall be conclusively deemed to be accurate and final and Seller and Purchaser shall each make any further adjustments required by such final proration statement.

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7.3Seller’s Closing Costs.  Seller shall pay (i) any conveyance or transfer taxes, (ii) any costs incurred in recording releases of any Seller financing encumbering the Real Property, (iii) one-half (½) of Escrow Agent’s escrow fee or escrow termination charge, (iv) one-half (½) the cost of the basic premium for the ALTA portion of the Title Policy, (v) any brokers commissions payable to Seller’s broker, if any, and Purchaser’s broker pursuant to Seller’s agreements with such brokers, and (vi) Seller’s own attorneys’ fees.

7.4Purchaser’s Closing Costs.  Purchaser shall pay (i) one-half (½) of Escrow Agent’s escrow fee or escrow termination charge, (ii) one-half (½) the cost of the basic premium for the ALTA portion of the Title Policy and the entire cost of ALTA extended coverage to the Title Policy in excess of the cost of the ALTA portion of the Title Policy and any title insurance endorsements ordered by Purchaser or simultaneously issued to Purchaser’s lender, (iii) any costs incurred by Purchaser in connection with Purchaser’s investigation of the Golf Course pursuant to Article 5, (iv) any recording costs including the cost to record the Deed, and (v) Purchaser’s own attorneys’ fees.

7.5Other Closing Costs.  All other closing costs shall be borne by the parties according to custom and practice in Maui, Hawaii.

ARTICLE 8

DISTRIBUTION OF FUNDS AND DOCUMENTS

8.1Delivery of the Purchase Price.  At the Closing, Escrow Agent shall deliver the Purchase Price to Seller, and the transaction shall not be considered closed until such delivery occurs and the Deed is duly recorded.

8.2Other Monetary Disbursements.  Escrow Agent shall, at the Closing, hold for personal pickup or arrange for wire transfer, (i) to Seller, or order, as instructed by Seller, all sums and any proration or other credits to which Seller is entitled and less any appropriate proration or other charges and (ii) to Purchaser, or order, any excess funds theretofore delivered to Escrow Agent by Purchaser and all sums and any proration or other credits to which Purchaser is entitled and less any appropriate proration or other charges.

8.3Recorded Documents.  Escrow Agent shall cause the Deed and any other documents that Seller or Purchaser desires to record to be recorded with the Bureau of Conveyances of the State of Hawaii and, after recording, returned to the grantee, beneficiary or person acquiring rights under said document or for whose benefit said document was required.

8.4All Other Documents.  Escrow Agent shall, at the Closing, deliver, by overnight express delivery, each other document received hereunder by Escrow Agent to the person acquiring rights under said document or for whose benefit said document was required.

ARTICLE 9

RETURN OF DOCUMENTS AND FUNDS UPON TERMINATION

9.1Return of Seller’s Documents.  If escrow or this Agreement is terminated for any reason, Purchaser shall, within five (5) days following such termination, deliver to Seller all

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documents and materials relating to the Golf Course previously delivered to Purchaser by Seller or by third parties at Seller’s direction.  Escrow Agent shall deliver all documents and materials deposited by Seller and then in Escrow Agent’s possession to Seller and shall destroy any documents executed by both Purchaser and Seller.  Upon delivery by Escrow Agent to Seller (or such destruction, as applicable) of such documents and materials, Escrow Agent’s obligations with regard to such documents and materials under this Agreement shall be deemed fulfilled and Escrow Agent shall have no further liability with regard to such documents and materials to either Seller or Purchaser.

9.2Return of Purchaser’s Documents.  If escrow or this Agreement is terminated for any reason, Escrow Agent shall deliver all documents and materials deposited by Purchaser and then in Escrow Agent’s possession to Purchaser and shall destroy any documents executed by both Purchaser and Seller.  Upon delivery by Escrow Agent to Purchaser (or such destruction, as applicable) of such documents and materials, Escrow Agent’s obligations with regard to such documents and materials under this Agreement shall be deemed fulfilled and Escrow Agent shall have no further liability with regard to such documents and materials to either Seller or Purchaser.

9.3No Effect on Rights of Parties; Survival.  The return of documents and monies as set forth above shall not affect the right of either party to seek such legal or equitable remedies as such party may have under Article 10 with respect to the enforcement of this Agreement.  The obligations under this Article 9 shall survive the termination of this Agreement.

ARTICLE 10

DEFAULT

10.1Seller’s Remedies.  If the sale is not completed as herein provided by reason of any default of Purchaser, Seller shall be entitled to all remedies and rights available to it at law or equity.  In addition to any other rights and remedies available to Seller, Seller shall have the right to bring an action against Purchaser seeking expungement or relief from any improperly filed lis pendens, injunction or other restraint for bringing an action for damages as part of a slander of title claim, and/or recovering fees, costs and expenses (including reasonable attorneys’ fees) which Seller may suffer or incur as a result of any Purchaser action but only to the extent that Seller is the prevailing party.  Nothing in this Agreement shall be deemed to limit Purchaser’s liability to Seller for damages or injunctive relief for breach of Purchaser’s indemnity obligations for attorneys’ fees and costs as provided in Section 16.6 below.  The foregoing is not intended to limit Purchaser’s obligations under Section 11.2 and 13.3.

10.2Purchaser’s Remedies.  If the sale is not completed as herein provided by reason of any material default of Seller, Purchaser shall be entitled, as its sole and exclusive remedy, to either (i) terminate this Agreement (by delivering notice to Seller which includes a waiver of any right, title or interest of Purchaser in the Golf Course) and, subject to Purchaser’s obligations under  Sections 5.2.4 and 5.2.7, obtain actual out-of-pocket third party expenses or (ii) treat this Agreement as being in full force and effect and pursue only the specific performance of this Agreement; provided, however, Purchaser must, if at all, file its specific performance action within one hundred twenty (120) days of the scheduled Closing Date.  If Seller acts in a manner that precludes Purchaser from pursuing specific performance (e.g., sells the Real Property to a bona-fide third party purchaser without knowledge of this Agreement) then Purchaser shall have the right (without the application of any cap on liability) to pursue against Seller any and all rights and remedies at

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law or in equity.  Except as provided in the preceding sentence, Purchaser waives any right to pursue any other remedy at law or equity for such default of Seller, including, without limitation, except as provided in the preceding sentence, any right to seek, claim or obtain damages, punitive damages or consequential damages.  Nothing in this Agreement shall, however, be deemed to limit Seller’s liability to Purchaser for damages or for attorney’s fees and costs as provided in Section 16.6 below except as set forth in Section 16.6.

ARTICLE 11

REPRESENTATIONS AND WARRANTIES

11.1Seller’s Warranties and Representations.  The matters set forth in this Section 11.1 constitute representations and warranties by Seller which are now and (subject to matters contained in any notice given pursuant to the next succeeding sentence) shall, in all material respects, at the Closing be true and correct.  If Seller learns of, or has a reason to believe that any of the representations and warranties contained in this Article 11 may cease to be true and correct, Seller shall give prompt notice to Purchaser (which notice shall include copies of the instrument, correspondence, or document, if any, upon which Seller’s notice is based) and, in such event, Purchaser may terminate this Agreement, upon written notice to Seller, without recourse against Seller; provided, however; Seller cannot act voluntary in a manner which would cause a representation and warranty to become materially incorrect or inaccurate.  As used in this Section 11.1, the phrase “to the extent of Seller’s actual knowledge” shall mean the actual current knowledge of Jeff Pearson, with respect to water and sewage issues only, Robert Webber, Ryan Churchill, Gary Planos, Dan Ligienza and Adele Sumida whom Seller represents to be the representatives of Seller having the responsibility for the management and sale of the Golf Course and accordingly the individuals responsible for being informed of matters relevant to this Agreement.  There shall be no duty imposed or implied to investigate, inspect, or audit any such matters, and there shall be no imputed or personal liability on the part of such individuals.  To the extent Purchaser has or acquires actual knowledge prior to the Closing Date that these representations and warranties are inaccurate, untrue or incorrect in any way, Purchaser may proceed to Closing without reduction in the Purchase Price and without recourse against Seller for such misrepresentation, in which even such representation or warranties shall be deemed modified to reflect Purchaser’s actual knowledge.

11.1.1Organization.  Seller has been duly formed, validly exists and is in good standing in the jurisdiction of its formation and in the state in which the Real Property is located.

11.1.2Power and Authority.  Seller has the legal power, right and authority to enter into this Agreement and to consummate the transactions contemplated hereby.  Except with respect to that certain mortgage in favor of Wells Fargo Bank, N.A. regarding the Real Property, which Seller shall have released in connection with the Closing, neither the execution or delivery of this Agreement nor the performance of Seller’s obligations under this Agreement violate, or will violate, any contract, agreement or instrument to which Seller is a party or by which Seller or the Golf Course is bound, or result in or constitute a violation or breach of any judgment, writ, order, injunction or decree applicable to Seller or the Golf Course.  No consent of any third party, governmental agency or governmental authority is required for the execution of this Agreement by Seller or the consummation by Seller of the transactions contemplated hereby.  The person executing any instruments for or on behalf of the Seller is fully authorized to act on behalf of Seller and this Agreement is valid and enforceable against Seller in accordance with its terms, and each

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instrument to be executed by Seller pursuant hereto or in connection therewith will, when executed, be valid and enforceable against Seller in accordance with its terms.

11.1.3Proceedings.  To the extent of Seller’s actual knowledge, Seller has not received any written notice of any pending or threatened condemnation or similar proceeding affecting any part of the Golf Course.

11.1.4Service Contracts.  To the extent of Seller’s actual knowledge, the Contracts comprise all of the material contracts which will affect the Golf Course on and after the Closing except for those agreements set forth in the Title Policy.  The list of Contracts attached as Exhibit C is true and correct in all material respects.

11.1.5Leases.  Except for the Restaurant Lease, Seller has not entered into and has no actual knowledge of any other leases or other agreements (whether oral or written) affecting or relating to the right of any party with respect to the right to occupancy of the Real Property or any portion thereof.

11.1.6Compliance.  To the extent of Seller’s actual knowledge, Seller has not received written notice from any governmental authority that the Golf Course is not in material compliance with all applicable laws, except for such failures to comply, if any, which have been remedied.  To the extent of Seller’s actual knowledge, the Golf Course is in material compliance with all applicable permits, approvals, licenses, certificates, covenants, conditions, restrictions, leases, easements and agreements of any kind or nature affecting the Golf Course.

11.1.7Litigation.  To the extent of Seller’s actual knowledge, Seller has received no written notice of material litigation pending with respect to the Golf Course which will affect Seller’s ability to comply with its obligations under this Agreement or could materially affect the use, value, marketability, operation or development of the Golf Course.

11.1.8Bankruptcy.  There has not occurred the making by Seller of any general assignment for the benefit of creditors, or the filing against Seller of a petition to have Seller adjudged a bankrupt or a petition for reorganization or arrangement under any law relating to bankruptcy, or the appointment of a trustee or receiver to take possession of substantially all of the interest of Seller in the Real Property, or the attachment, execution or judicial seizure of substantially all the assets of Seller or the interests of Seller in the Real Property or any legal proceeding in which Seller is adjudicated as being, or stipulates to being, insolvent or unable to pay its debts as they come due.

11.1.9OFAC.  Seller is in compliance with, and, to extent of Seller’s actual knowledge, all beneficial owners of Seller are in compliance with the requirements of Executive Order No. 13224, 66 Fed Reg. 49079 (September 25, 2001) (the “Order”) and other similar requirements contained in the rules and regulations of the Office of Foreign Asset Control, Department of the Treasury (“OFAC”) and in any enabling legislation or other executive orders in respect thereof (the Order and such other rules, regulations, legislation, or orders are collectively called the “Orders”).  Neither Seller nor, to the extent of Seller’s actual knowledge, any beneficial owner of Seller:

(a)is listed on the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to the Order and/or on any other list of terrorists or terrorist

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organizations maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable Orders (such lists are collectively referred to as the “Lists”);

(b)has been determined by competent authority to be subject to the prohibitions contained in the Orders; or

(c)is owned or controlled by, nor acts for or on behalf of, any person or entity on the Lists or any other person or entity who has been determined by competent authority to be subject to the prohibitions contained in the Orders.

11.1.10Foreign Person.  Seller is not a “foreign person” as that term is defined in Section 1445 of the Internal Revenue Code of 1986, as amended from time to time, and any regulations, rulings and guidance issued by the Internal Revenue Service (collectively, the “Code”), and applicable regulations, and is not a “nonresident person”, as that term is used in Section 235-68 of the Hawaii Revised Statutes, as amended.

11.1.11No Use or Zoning Changes.  Seller has not received written notice of any plan, study or effort by any governmental agency or authority that would materially adversely affect the present use or zoning of any portion of the Golf Course or that would modify or realign any street or highway adjacent to the Golf Course.

11.1.12No Assessments or Deferred Taxes.  To Seller’s actual knowledge, except as shown on the Title Policy, there are no outstanding, pending or proposed special assessments or special real property related taxes, including any deferred money payments or performances on account of any subdivision or change in zoning or land use classification, affecting the Real Property or any acts or omissions of Seller that would result in the imposition of any deferred or “roll back” taxes with respect to the Real Property.

11.1.13Environmental Matters.  To the extent of Seller’s actual knowledge, the Real Property is free from any flammable explosives, radioactive materials, asbestos, lead based paint, organic compounds known as polychlorinated biphenyls, chemicals known to cause cancer or reproductive toxicity, pollutants, contaminants, hazardous wastes, toxic substances or related materials, including, without limitation, any substances defined as or included in the definition of “hazardous substances,” “hazardous wastes,” “hazardous materials,” or “toxic substances” (collectively, “Hazardous Materials”) under any federal, state or local laws, ordinances or regulations, now or hereafter in effect, relating to environmental conditions, industrial hygiene or Hazardous Materials on, under or about the Real Property, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Clean Water Act, 33 U.S.C. Section 1251, et seq., the Clean Air Act, 42 U.S.C. Section 704, et seq., the Toxic Substances Control Act, 15 U.S.C. Sections 2601 through 2629, the Safe Drinking Water Act, 42 U.S.C. Sections 300f through 300j, and any similar state and local laws and ordinances and regulations now or hereafter adopted, published and/or promulgated pursuant thereto (collectively, the “Hazardous Materials Laws”), except in compliance with the Hazardous Materials Laws or for normal amounts of pesticides, herbicides or cleaning and maintenance supplies in customary amounts used in the operation of a golf course and at all times used, stored and maintained in accordance with Hazardous Materials Laws.  To the extent of Seller’s actual knowledge, the Real Property is not currently used in a manner, and no prior use has occurred, which violates any

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Hazardous Materials Laws.  To the extent of Seller’s actual knowledge, Seller has not received any notice from a governmental agency for violation of Hazardous Materials Laws.

11.1.14Wetlands.  To the extent of Seller’s actual knowledge, there are no areas of the Land subject to wetlands regulation or the jurisdiction of any federal, state or county agency regulating and controlling wetlands, and no such agency has made a determination that any wetland exists on the Land.

11.1.15Historic Sites.  To the extent of Seller’s actual knowledge, the Real Property does not contain any buildings, structures, objects, districts, areas or sites of prehistoric, historic or archeological interest or significance or any site eligible for listing on the National Register of Historic Places.

11.1.16Endangered Species.  To the extent of Seller’s actual knowledge, the Land does not contain any aquatic life, wildlife or plant defined as or included in the definition of “endangered species” under any federal, state, or local laws, ordinances or regulations relating to the conservation, preservation, management or protection of any endangered species or critical habitat upon which any endangered species depends.

11.1.17Disability Access.  To the extent of Seller’s actual knowledge, all Improvements within the Land comply with all governmental requirements regarding access of disabled persons including, without limitation, Titles III and V of the Americans With Disabilities Act of 1990, 42 U.S.C. §§ 12101, et seq. or any other similar federal, state or local laws or ordinances and regulations promulgated there under.

11.1.18County Agreements.  To the extent of Seller’s actual knowledge, Seller has performed each and every material obligation contained in the agreements with the County of Maui and the Department of Water Supply of the County of Maui affecting the Real Property capable of being performed by Seller prior to the Closing Date and, to the extent of Seller’s actual knowledge, has taken no action as of the Closing Date that will impose any obligation on the Real Property or the Purchaser under such agreement following the Closing Date.

11.1.19Full Disclosure.  To the extent of Seller’s actual knowledge, the due diligence information provided by Seller to Purchaser, including all financial statements, is true and complete in all material respects and to the best of Seller’s actual knowledge, Seller has not failed to disclose to Purchaser any facts or information known to Seller material to the title, condition, use or operation of the Real Property or the Personal Property or any portion thereof.

11.1.20Plant and Equipment.  To the best of Seller’s actual knowledge, and except as previously disclosed to Purchaser or otherwise described on the Exhibit DD maintenance schedule attached hereto and made a part hereof, the electrical, plumbing, heating and cooling systems and appliances, if any, in the Improvements on the Land are in good working order; the roofs, structural components and foundations of the Improvements on the Land are performing the function for which they were intended and are not in need of repair; there are no unusual drainage conditions or evidence of termites, mold, mildew, or excessive moisture adversely affecting the Land and Improvements thereon; and the electrical, telephone, gas, water, and waste disposal systems serving the Land and the Improvements are adequate, not in need of repair and are performing the functions for which they were intended.

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11.2        Purchaser’s Warranties and Representations.  The matters set forth in this Section 11.2 constitute representations and warranties by Purchaser which are now and shall, at the Closing, be true and correct.

11.2.1        Power and Authority.  Purchaser has the legal power, right and authority to enter into this Agreement and to consummate the transactions contemplated hereby.  Neither the execution or delivery of this Agreement nor the performance of Purchaser’s obligations under this Agreement violate, or will violate, any contract, agreement or instrument to which Purchaser is a party or by which Purchaser is bound, or will result in or constitute a violation or breach of any judgment, writ, order, injunction or decree applicable to Purchaser.  No consent of any third party, governmental agency or governmental authority is required for the execution of this Agreement by Purchaser or the consummation by Purchaser of the transactions contemplated hereby.  The person executing any instruments for or on behalf of Purchaser is fully authorized to act on behalf of Purchaser and this Agreement is valid and enforceable against Purchaser in accordance with its terms and each instrument to be executed by Purchaser pursuant hereto or in connection therewith will, when executed, be valid and enforceable against Purchaser in accordance with its terms.

11.2.2        Independent Investigation.  The consummation of this transaction shall constitute Purchaser’s acknowledgment that it has independently inspected and investigated the Golf Course and has made and entered into this Agreement based upon the representations and warranties of Seller contained in this Agreement and the documents and agreements to be delivered by Seller at Closing and inspection and investigation and its own examination of all aspects of the Golf Course, including, without limitation, its economic and functional viability, physical condition and surroundings, title matters and compliance with all laws.

11.2.3        Bankruptcy.  There has not occurred the making by Purchaser of any general assignment for the benefit of creditors, or the filing against Purchaser of a petition to have Purchaser adjudged a bankrupt or a petition for reorganization or arrangement under any law relating to bankruptcy, or the appointment of a trustee or receiver to take possession of substantially all of the interest of Purchaser’s assets, or the attachment, execution or judicial seizure of substantially all the assets of Purchaser or any legal proceeding in which Purchaser is adjudicated as being, or stipulates to being, insolvent or unable to pay its debts as they come due.

11.2.4        OFAC.  Purchaser is in compliance with, and, to Purchaser’s knowledge, all beneficial owners of Purchaser are, in compliance with the requirements of the Orders.  Neither Purchaser nor, to the best of Purchaser’s knowledge, any beneficial owner of Purchaser:

(a)           is listed on the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to the Order and/or on any other Lists;

(b)           has been determined by competent authority to be subject to the prohibitions contained in the Orders; or

(c)           is owned or controlled by, nor acts for or on behalf of, any person or entity on the Lists or any other person or entity who has been determined by competent authority to be subject to the prohibitions contained in the Orders.

11.2.5        No Other Warranties and Representations.  EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT OR IN ANY OF THE OTHER CLOSING DOCUMENTS

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OR INSTRUMENTS DELIVERED BY SELLER AT CLOSING, SELLER HAS NOT MADE, MAKES OR HAS AUTHORIZED ANYONE TO MAKE, ANY WARRANTY OR REPRESENTATION AS TO THE LEASES, THE CONTRACTS, ANY WRITTEN MATERIALS DELIVERED TO PURCHASER, THE PERSONS PREPARING SUCH MATERIALS, THE PRESENT OR FUTURE PHYSICAL CONDITION, DEVELOPMENT POTENTIAL, ZONING, BUILDING OR LAND USE LAW OR COMPLIANCE THEREWITH, THE OPERATION, INCOME GENERATED BY, OR ANY OTHER MATTER OR THING AFFECTING OR RELATING TO THE GOLF COURSE OR ANY MATTER OR THING PERTAINING TO THIS AGREEMENT.  PURCHASER EXPRESSLY ACKNOWLEDGES THAT NO SUCH WARRANTY OR REPRESENTATION HAS BEEN MADE BY SELLER OR ITS AGENTS, BROKERS OR REPRESENTATIVES, OR BY ANY OTHER PERSON ACTING OR PURPORTING TO ACT ON BEHALF OF SELLER, AND THAT PURCHASER IS NOT RELYING ON ANY WARRANTY OR REPRESENTATION WHATSOEVER OTHER THAN AS IS EXPRESSLY SET FORTH IN THIS ARTICLE 11 OR IN ANY OF THE CLOSING DOCUMENTS ATTACHED AS EXHIBITS HERETO.  PURCHASER EXPRESSLY UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT IT IS ACQUIRING AND ACCEPTING THE GOLF COURSE “AS IS WITH ALL FAULTS” AND IN ITS CONDITION ON THE DATE OF CLOSING SUBJECT ONLY TO THE EXPRESS PROVISIONS OF THIS AGREEMENT AND THE OTHER CLOSING DOCUMENTS AND INSTRUMENTS.

11.2.6         No Environmental Representations.  Except as set forth in Section 11.1.13, Seller makes no representations or warranties as to whether the Golf Course contains asbestos, lead based paint, radon or any other Hazardous Materials or harmful or toxic substances, or pertaining to the extent, location or nature of same, if any.  Further, to the extent that Seller has provided to Purchaser information from any inspection, engineering or environmental reports concerning asbestos, lead based paint, radon or any Hazardous Materials or harmful or toxic substances or any compliance by Seller with respect thereto, Seller makes no representations or warranties with respect to the accuracy or completeness, methodology of preparation or otherwise concerning the contents of such reports.

11.2.7         Release of Claims.  Subject to the express provisions hereof, Purchaser acknowledges and agrees that Seller makes no representation or warranty as to, and Purchaser waives and releases Seller from any present or future claims, whether known or unknown, foreseeable or otherwise, arising from or relating to, the Golf Course, this Agreement or the transactions contemplated hereby, including, without limitation, the physical condition of the Golf Course and the presence or alleged presence of asbestos, radon or any Hazardous Materials or harmful or toxic substances in, on, under or about the Golf Course, including, without limitation, any claims under or on account of (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as the same may have been or may be amended from time to time, and similar state statutes, and any regulations promulgated thereunder, (ii) any other federal, state or local law, ordinance, rule or regulation, now or hereafter in effect, that deals with or otherwise in any manner relates to, environmental matters of any kind, (iii) this Agreement, or (iv) the common law.  Nothing contained in this Section 11.2.7 shall release Seller from (i) Seller’s fraud or Seller’s breach of this Agreement (ii) claims by the Equal Protection Agency and State of Hawaii Department of Health against Seller for events that occurred prior to Closing and (iii) third party claims against Seller for actions of Seller first occurring or arising prior to Closing.

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Purchaser hereby specifically acknowledges that Purchaser has carefully reviewed this subsection and discussed its import with legal counsel and that the provisions of this subsection are a material part of this Agreement.

TY Management Corporation
By
	Tadashi Yanai
	President
		Purchaser

This Section 11.2.7 shall survive the Closing.

ARTICLE 12

CASUALTY AND CONDEMNATION

Promptly upon learning thereof, Seller shall give Purchaser written notice of any condemnation, damage or destruction of the Real Property occurring prior to the Closing together with, in the case of a casualty, a reasonably detailed estimate of the cost to repair the damage or destroyed Real Property prepared by a third party engineer or contractor retained by Seller.  If prior to the Closing all or a material portion of the Real Property is condemned, damaged or destroyed, Purchaser shall have the option of either (i) applying the proceeds of any condemnation award or payment under any insurance policies (other than business interruption or rental loss insurance applicable to the period prior to Closing) toward the payment of the Purchase Price to the extent such condemnation awards or insurance payments have been received by Seller, receiving from Seller an amount equal to any applicable deductible under any such insurance policy or the amount of any uninsured loss, provided Seller has not terminated this Agreement in accordance with this Article 12, and receiving an assignment from Seller of Seller’s right, title and interest in any such awards or payments not theretofore received by Seller, or (ii) terminating this Agreement by delivering written notice of such termination to Seller and Escrow Agent within twenty (20) days after Purchaser has received written notice from Seller of such material condemnation, damage or destruction and, if necessary, the Closing date shall be extended to give Purchaser the full twenty (20) day period to make such election.  If, prior to the Closing, a portion of the Real Property is condemned, damaged or destroyed and such portion is not a material portion of the Real Property, the proceeds of any condemnation award or payment and any applicable deductible under any insurance policies or the amount of any uninsured loss, provided Seller has not terminated this Agreement in accordance with this Article 12, shall be applied toward the payment of the Purchase Price to the extent such condemnation awards or insurance payments have been received by Seller and Seller shall assign to Purchaser all of Seller’s right, title and interest in any unpaid awards or payments.  Seller shall not settle any insurance or condemnation claim with respect to the Real Property following the Effective Date without first receiving Purchaser’s prior written consent thereto, which shall not be unreasonably withheld.  For purposes of this Article 12, the term “material portion” shall mean (A) damage that will cost in excess of Five Million Dollars ($5,000,000), or will take longer than six months, to repair, or (B) condemnation that results in a taking of any of the Improvements, any parking spaces, any ingress or egress or any other portion of

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the Real Property which, in each case, in Seller’s reasonable judgment, would materially affect the use, value, operation or legal compliance of the Real Property.  If the damage or destruction arises out of an uninsured risk and the reasonable cost for repairing such damage or destruction not covered by insurance exceeds Five Million Dollars ($5,000,000), Seller shall elect, by written notice within ten (10) days of the occurrence of such damage or destruction either to terminate this Agreement or to close the transaction contemplated hereby with a reduction of the Purchase Price equal to the costs of repairing the Real Property, as reasonably estimated by an engineer engaged by Seller and reasonably acceptable to Purchaser.

ARTICLE 13

CONDUCT PRIOR TO CLOSING

13.1        Conduct.  From and after the date hereof, Seller shall operate and maintain the Golf Course in accordance with its standard business procedures (including, without limitation, making vacant units rent ready in its normal course of business); provided, however, that Seller shall have no obligation to make any capital expenditures.

13.2        Actions Prohibited.  Seller shall not, without the prior written approval of Purchaser, which approval shall not be unreasonably withheld or delayed:  (i) make any material structural alterations or additions to the Real Property except as (a) in the ordinary course of operating the Real Property, (b) required for maintenance and repair or (c) required by any of the leases or the Contracts; (ii) sell, transfer, encumber or change the status of title of all or any portion of the Golf Course; (iii) change or attempt to change, directly or indirectly, the current zoning of the Real Property in a manner materially adverse to it; or (iv) cancel, amend or modify, in a manner materially adverse to the Real Property, any license or permit held by Seller with respect to the Real Property or any part thereof which would be binding upon Purchaser after the Closing.

13.3        Confidentiality.  Seller and Purchaser shall, prior to the Closing, maintain the confidentiality of this sale and purchase and shall not, except as required by law or governmental regulation applicable to Seller or Purchaser, disclose the terms of this Agreement or of such sale and purchase to any third parties whomsoever other than investors or prospective investors in Seller or Purchaser, Purchaser’s lender, or the principals of the Broker, Escrow Agent, Title Company, Purchaser’s advisors or consultants and such other persons whose assistance is required in carrying out the terms of this Agreement, or to governmental agencies if and to the extent required to verify the zoning and entitlements of the Real Property.  Neither Seller nor Purchaser shall at any time issue a press release or otherwise communicate with media representatives regarding this sale and purchase unless such release or communication has received the prior approval of the other party.  Purchaser agrees that all documents and information regarding the Golf Course of whatsoever nature made available to it by Seller or Seller’s agents and the results of all tests and studies of the Golf Course (collectively, the “Proprietary Information”) are confidential and Purchaser shall not disclose any Proprietary Information to any other person except those assisting it with the analysis of the Golf Course, and only after procuring such person’s agreement to abide by these confidentiality restrictions.  This Section 13.3 shall survive the Closing or termination of this Agreement.

13.4        Right to Cure.  If any title defect or other matter which would entitle Purchaser to terminate this Agreement shall arise prior to the Closing or if Seller shall have breached any representation or warranty hereunder, Seller may elect, by written notice to Purchaser, to cure such

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title defect or other matter by causing it to be removed, insured over or bonded to cure such breach or cure such breach of any representation or warranty hereunder, and Seller may adjourn the Closing for up to twenty (20) days to do so in which event Seller will give Purchaser not less than five (5) business days notice of the date of Closing.  Nothing contained in this Section 13.4 shall require Seller to cure any such title defect or other matter or to incur any liability or expense to do so except as otherwise expressly provided herein.

13.5        Additional Information.  Promptly after receipt thereof, Seller shall provide copies to Purchaser of any written notices received by Seller from any governmental agency, which notices relate to the Golf Course or the ownership, management, leasing, maintenance, repair or operation thereof.  Within ten (10) days of generating or receiving, as applicable, any new Golf Course operating statements or updates of existing Golf Course operating statements, Seller shall deliver copies thereof to Purchaser.

ARTICLE 14

NOTICES

14.1        Generally.  Any and all notices, demands, consents, approvals, offers, elections and other communications required or permitted under this Agreement shall be deemed adequately given if in writing addressed to the recipient of the notice at the addresses set forth below (or to such other addresses as the parties may specify by due notice to the others) and the same shall be delivered either (i) by hand, (ii) by mail, postage prepaid and registered or certified with return receipt requested, (iii) by Federal Express or similar expedited commercial carrier, with all freight charges prepaid, or (iv) by facsimile transmission or email with a hard copy to follow by Federal Express or similar expedited commercial carrier.

14.2        Receipt of Notices.  All notices required or permitted to be sent hereunder shall be deemed to have been given for all purposes of this Agreement upon the date of acknowledged receipt or upon the date of receipt of refusal.  Notices or other communications (i) given by mail will be presumed received on the fifth business day after they are mailed, (ii) given by Federal Express or similar expedited commercial carrier will be presumed received on the next business day after they are sent, (iii) given by facsimile transmission will be presumed received at the time indicated in the recipient’s automatic acknowledgment, and (iv) given by email will be presumed received on the day the email is sent.  Whenever under this Agreement a notice is either received on a day which is not a business day or is required to be delivered on or before a specific day which is not a business day, the day of receipt or required delivery shall automatically be extended to the next business day.

14.3        Addresses.  All such notices shall be addressed,

if to Seller, to:
Maui Land & Pineapple Company, Inc.
PO Box 187
Kahului, Hawaii  96733-6687
Attention: Robert I. Webber
Email: robert.webber@mlpmaui.com
Telephone: (808) 669-5625
Facsimile: (808) 669-5454

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with a copy to:
Paul, Hastings, Janofsky & Walker LLP
515 South Flower Street, 25th Floor
Los Angeles, California  90048
Attention: Rick S. Kirkbride
Email: rickkirkbride@paulhastings.com
Telephone: (213) 683-6261
Facsimile: (213) 996-3261

if to Purchaser, to:
TY Management Corporation

c/o Fast Retailing Co., Ltd.

1-13-12, Kudankita, Chiyoda-Ku

Tokyo, 1020073 Japan

Attention: Hiroyuki Uchida

Email: hiroyuki.uchida@fastretailing.com

Telephone: (81-3) 6272-0040

Facsimile: (81-3) 6272-0060

with a copy to:
Carlsmith Ball LLP
One Main Plaza, Suite 400
2200 Main Street, P.O. Box 1086
Wailuku, Maui, HI  96793-1086
Attention: B. Martin Luna, Esq.
Email: bml@carlsmith.com
Telephone: (808) 242-4535
Facsimile: (808) 244-4974

with a copy to:
Carlsmith Ball LLP
ASB Tower, Suite 2200
1001 Bishop Street
Honolulu, HI  96813
Attention: Robert E. Strand, Esq.
Email: rstrand@carlsmith.com
Telephone: (808) 523-2525
Facsimile: (808) 523-0842

if to Escrow Agent, to:
Title Guaranty Escrow Services, Inc.
235 Queen Street
Honolulu, Hawaii  96813
Attn: Ms. Ann Oshiro
Email: aoshiro@tghawaii.com
Phone: (808) 521-0213
Fax: (808) 521-0280

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14.4        Address Changes.  By notice given as herein provided, the parties hereto and their respective successors and assigns shall have the right, from time to time and at any time during the term of this Agreement, to change their respective addresses effective upon receipt by the other parties of such notice and each shall have the right to specify as its address any other address within the United States of America.

ARTICLE 15

TRANSFER OF TITLE AND POSSESSION

15.1        Transfer of Possession.  Possession of the Real Property shall be transferred to Purchaser at the time of the recordation of the Deed subject only to the Permitted Encumbrances.

15.2        Delivery of Documents at Closing.  At the time of Closing, Seller shall deliver to Purchaser originals or copies of any additional documents, instruments, records, keys and other Personal Property to be conveyed hereunder in the possession of Seller or its agents which are necessary for the ownership and operation of the Golf Course.

ARTICLE 16

GENERAL PROVISIONS

16.1        Section and Other Headings.  The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.

16.2        Exhibits.  All exhibits referred to herein and attached hereto are a part hereof.

16.3        Entire Agreement.  This Agreement contains the entire agreement between the parties relating to the transaction contemplated hereby and all prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged herein.

16.4        Broker.  Seller acknowledges that Purchaser has procured the services of Roy Sakamoto (“Broker”), and Seller shall be responsible for any fee or commission payable to Broker as a result of the sale of the Golf Course pursuant to this Agreement.  Each party agrees that should any claim be made for brokerage commissions or finder’s fees by any broker or finder other than Broker by, through or on account of any act or alleged act of said party or its representatives, said party will indemnify, defend, protect and hold the other party free and harmless from and against any and all loss, liability, cost, damage and expense in connection therewith.  The provisions of this Section 16.4 shall survive Closing or earlier termination of this Agreement.

16.5        Modification.  No modification, waiver, amendment, discharge or change of this Agreement shall be valid unless the same is in writing and signed by the party against which the enforcement of such modification, waiver, amendment, discharge or change is or may be sought.

16.6        Attorneys’ Fees.  Should any party hereto employ an attorney for the purpose of enforcing or construing this Agreement, or any judgment based on this Agreement, in any legal proceeding whatsoever, including insolvency, bankruptcy, arbitration, declaratory relief or other litigation, the prevailing party shall be entitled to receive from the other party or parties thereto

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reimbursement for all reasonable attorneys’ fees and all costs, whether incurred at the trial or appellate level, including, but not limited to, service of process, filing fees, court and court reporter costs, investigative costs, expert witness fees and the cost of any bonds, whether taxable or not, and such reimbursement shall be included in any judgment, decree or final order issued in that proceeding.  The “prevailing party” means the party in whose favor a judgment, decree, or final order is rendered.

16.7        Governing Law.

16.7.1         This Agreement shall be construed and enforced in accordance with the laws of the State of Hawaii.

16.7.2         For the purposes of any suit, action or proceeding involving this Agreement, Seller and Purchaser hereby expressly submit to the jurisdiction of all federal and state courts sitting in the State of Hawaii and consent that any order, process, notice of motion or other application to or by any such court or a judge thereof may be served within or without such court’s jurisdiction by registered mail or by personal service; provided that a reasonable time for appearance is allowed, and Purchaser agrees that such courts shall have the exclusive jurisdiction over any such suit, action or proceeding commenced by any party.  In furtherance of such agreement, Purchaser agrees upon the request of any party to discontinue (or agree to the discontinuance of) any such suit, action or proceeding pending in any other jurisdiction.

16.7.3         Purchaser hereby irrevocably waives any objection that Purchaser may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement brought in any federal or state court sitting in the State of Hawaii and hereby further irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

16.7.4         EACH PARTY HEREBY WAIVES, IRREVOCABLY AND UNCONDITIONALLY, TRIAL BY JURY IN ANY ACTION BROUGHT ON, UNDER OR BY VIRTUE OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY OF THE DOCUMENTS EXECUTED IN CONNECTION HEREWITH, THE GOLF COURSE, OR ANY CLAIMS, DEFENSES, RIGHTS OF SET-OFF OR OTHER ACTIONS PERTAINING HERETO OR TO ANY OF THE FOREGOING

16.8        Time of Essence.  Time is of the essence to this Agreement and to all dates and time periods set forth herein.

16.9        Survival of Warranties; Limitation on Liability.  Only the warranties and representations contained in Sections 11.1. and 11.2 shall survive the Closing, the delivery of the Deed and the payment of the Purchase Price, provided that (i) such representations and warranties (but not such provisions) shall cease and terminate twenty-four (24) months after the date of Closing, except in respect of any representation or warranty as to which Purchaser or Seller, as the case may be, shall have commenced, on or before such twenty-four (24) month anniversary, a legal proceeding based on the breach thereof as of the date of Closing, and then only for so long as such proceeding shall continue and limited to the breach therein claimed and (ii) the maximum total liability for which Seller shall be responsible with respect to all representations and warranties shall not exceed Fifteen Million Dollars ($15,000,000) (the “Cap”).  No representation and warranty contained in any of the documents delivered by Seller at Closing pursuant to Section 4.2 shall be

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subject to the time limitation or Cap described in this Section 16.9.  Seller shall have no liability to Purchaser after Closing for any matter disclosed in writing by Seller or actually known by Purchaser prior to Closing, including, without limitation, any matter that Purchaser is deemed to have knowledge of pursuant to Section 11.2 above.  Seller covenants and agrees that Seller shall maintain a net worth equal to the Cap for a period of time equal to the greater of (i) twenty-four (24) months following the Closing or (ii) the final adjudication of any claim or action or lawsuit timely raised prior to the expiration of such twenty-four (24) month period.

16.10      Assignment by Purchaser.  Purchaser may not assign its rights under this Agreement without the prior written approval of Seller in its sole and absolute discretion.  Notwithstanding the foregoing, Purchaser shall have the right to assign its right, title and interest in and to this Agreement to a Permitted Assignee (defined below) by written notice to Seller no later than five (5) days prior to the Closing Date, without approval of Seller.  For purposes of this Paragraph, a “Permitted Assignee” shall mean (i) any entity that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with Purchaser, as the case may be, (ii) to the extent not covered by clause (i) above, any entity in which Purchaser or any entity controlling, controlled by, or under common control with Purchaser is the managing member, general partner or manager of such assignee or of such assignee’s managing member, general partner or manager and (iii) any fund owned, managed or advised by Purchaser.  For the purposes of this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise.  Purchaser shall in no event be released from any of its obligations or liabilities hereunder in connection with any assignment.

16.11      Severability.  If any term, covenant, condition, provision or agreement herein contained is held to be invalid, void or otherwise unenforceable by any court of competent jurisdiction, the fact that such term, covenant, condition, provision or agreement is invalid, void or otherwise unenforceable shall in no way affect the validity or enforceability of any other term, covenant, condition, provision or agreement herein contained.

16.12      Assignment; Successors and Assigns.  Except as otherwise provided herein, this Agreement and all rights and obligations hereunder shall not be assignable by any party without the written consent of the other party.  This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.  This Agreement is not intended and shall not be construed to create any rights in or to be enforceable in any part by any other persons.

16.13      Interpretation.  Seller and Purchaser each acknowledge to the other that both they and their counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendments or exhibits hereto.

16.14      Counterparts.  This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed an original; such counterparts shall together constitute but one agreement.  A facsimile copy of a signature shall constitute an original signature for purposes of the execution of this Agreement.

16.15      Recordation.  This Agreement may not be recorded and any attempt to do so shall be of no effect whatsoever.

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16.16      Limitation on Liability.  No shareholder, partner, officer, employee or agent of or consultant to or of Seller shall be held to any personal liability hereunder.

16.17      Business Day.  As used in this Agreement, “business day” shall be deemed to be any day other than a day on which banks in the State of Hawaii shall be permitted or required to close.  If the final date of any period which is set out in any provision of this Agreement falls on a Saturday, Sunday or legal holiday under the laws of the United States or the State of Hawaii, then the time of such period shall be extended to the next date which is not a Saturday, Sunday or legal holiday.

16.18      Waivers, Etc.  Any waiver of any term or condition of this Agreement, or of the breach of any covenant, representation or warranty contained herein, in any one instance, shall not operate as or be deemed to be or construed as a further or continuing waiver of any other breach of such term, condition, covenant, representation or warranty or any other term, condition, covenant, representation or warranty, nor shall any failure at any time or times to enforce or require performance of any provision hereof operate as a waiver of or affect in any manner such party’s right at a later time to enforce or require performance of such provision or any other provision hereof.  This Agreement may not be amended nor shall any waiver, change, modification, consent or discharge be effected, except by an instrument in writing executed by or on behalf of the party against whom enforcement of any amendment, waiver, change, modification, consent or discharge is sought.

16.19      Relationship.  Nothing herein contained shall be deemed or construed by the parties hereto, nor by any third party, as creating the relationship of principal and agent or of partnership or joint venture between the parties hereto, it being understood and agreed that (except as and to the extent specifically provided for herein) no provision contained herein, nor any acts of the parties hereto shall be deemed to create the relationship between the parties hereto other than the relationship of seller and purchaser and landlord and prospective tenant, as the case may be.

ARTICLE 17

ESCROW AGENT DUTIES AND DISPUTES

17.1        Other Duties of Escrow Agent.  Escrow Agent shall not be bound in any way by any other agreement or contract between Seller and Purchaser, whether or not Escrow Agent has knowledge thereof.  Escrow Agent’s only duties and responsibilities with respect to any funds deposited with Escrow Agent pursuant to the terms hereof (the “Deposit”) shall be to hold the Deposit and other documents delivered to it as agent and to dispose of the Deposit and such documents in accordance with the terms of this Agreement.  Without limiting the generality of the foregoing, Escrow Agent shall have no responsibility to protect the Deposit and shall not be responsible for any failure to demand, collect or enforce any obligation with respect to the Deposit or for any diminution in value of the Deposit from any cause, other than Escrow Agent’s gross negligence or willful misconduct.  Escrow Agent may, at the expense of Seller and Purchaser, consult with counsel and accountants in connection with its duties under this Agreement.  Escrow Agent shall not be liable to the parties hereto for any act taken, suffered or permitted by it in good faith in accordance with the advice of counsel and accountants.  Escrow Agent shall not be obligated to take any action hereunder that may, in its reasonable judgment, result in any liability to it unless Escrow Agent shall have been furnished with reasonable indemnity satisfactory in amount, form and substance to Escrow Agent.

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17.2        Disputes.  Escrow Agent is acting as a stakeholder only with respect to the Deposit.  If there is any dispute as to whether Escrow Agent is obligated to deliver the Deposit or as to whom the Deposit is to be delivered, Escrow Agent shall not make any delivery, but shall hold the Deposit until receipt by Escrow Agent of an authorization in writing, signed by all the parties having an interest in the dispute, directing the disposition of the Deposit, or, in the absence of authorization, Escrow Agent shall hold the Deposit until the final determination of the rights of the parties in an appropriate proceeding.  Escrow Agent shall have no responsibility to determine the authenticity or validity of any notice, instruction, instrument, document or other item delivered to it, and it shall be fully protected in acting in accordance with any written notice, direction or instruction given to it under this Agreement and reasonably believed by it to be authentic.  If written authorization is not given, or proceedings for a determination are not begun, within thirty (30) days after the date scheduled for the closing of title and diligently continued, Escrow Agent may, but is not required to, bring an appropriate action or proceeding for leave to deposit the Deposit with a court of the State of Hawaii pending a determination.  Escrow Agent shall be reimbursed for all costs and expenses of any action or proceeding, including, without limitation, attorneys’ fees and disbursements incurred in its capacity as Escrow Agent by the party determined not to be entitled to the Deposit.  Upon making delivery of the Deposit in the manner provided in this Agreement, Escrow Agent shall have no further liability hereunder.  In no event shall Escrow Agent be under any duty to institute, defend or participate in any proceeding that may arise between Seller and Purchaser in connection with the Deposit.

17.3        Reports.  Escrow Agent shall be responsible for the timely filing of any reports or returns required pursuant to the provisions of Section 6045(e) of the Code (and any similar reports or returns required under any state or local laws) in connection with the closing of the transaction contemplated by this Agreement.

[Remainder of Page Intentionally Left Blank]

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IN WITNESS WHEREOF, this Agreement has been executed as of the date first set forth above.

SELLER:

MAUI LAND & PINEAPPLE COMPANY, INC.,

a Hawaii corporation

By:	/s/ Robert I. Webber			By:	/s/ Ryan Churchill
Name:			Robert I. Webber	Name:			Ryan Churchill
Title:		Executive Vice President		Title:		Senior Vice President
KAPALUA LAND COMPANY, LTD.,
a Hawaii corporation
By:	/s/ Robert I. Webber			By:	/s/ Ryan Churchill
Name:			Robert I. Webber	Name:			Ryan Churchill
Title:		Executive Vice President		Title:		Senior Vice President
PURCHASER:
TY MANAGEMENT CORPORATION,
a Hawaii corporation
By:	/s/ Tadashi Yanai
Name:			Tadashi Yanai
Title:		President

EX-10.1

Exhibit 10.1

PLANTATION GOLF COURSE LEASE

THIS LEASE (the “Lease”) is made and entered into effective March 27, 2009 (the (Effective Date”), by and between TY MANAGEMENT CORPORATION, a Hawaii corporation, whose address is c/o Carlsmith Ball LLP, One Maui Plaza, Suite 400, Wailuku, Hawaii 96793-1086 (“Lessor”), and KAPALUA PLANTATION GOLF LLC, a Hawaii limited liability company, whose address is P.O. Box 187, Kahului, Hawaii  96733-6687, (“Lessee”);

In consideration of the agreements hereinafter set forth, Lessor and Lessee do hereby agree as follows:

1.Premises.  Lessor does hereby demise and let unto Lessee, and Lessee does hereby lease and hire from Lessor, that certain real property more particularly described on Exhibit A attached hereto and incorporated herein by reference commonly known as the “Kapalua Plantation Golf Course”, together with all buildings and other improvements located thereon, and any rights, easements or appurtenances belonging to the same or held and enjoyed in connection therewith, subject, however, to the encumbrances set forth in said Exhibit A (hereinafter collectively called the “Premises” or the “Golf Course”).

2.Term.  This Lease shall be for a term of two (2) years (the “Term”) commencing on March 27, 2009 (the “Commencement Date”) and ending on March 31, 2011 (the “Termination Date”), unless such term shall be sooner terminated as hereinafter provided.

3.Quiet Enjoyment.  Upon payment by Lessee of the rent, additional payments and all other charges to be borne by Lessee as set forth in this Lease, and upon Lessee’s observance and performance of all of the terms, covenants and conditions hereinafter contained, Lessee shall peaceably and quietly enjoy the Premises for the term hereof without hindrance or interruption by Lessor or any other persons lawfully claiming by, through or under Lessor, except as expressly provided in this Lease.

4.Rent.  Lessee shall pay to Lessor at its address set forth above in legal tender of the United States of America, without any deduction, notice or demand except as otherwise set forth herein, an annual net rent of FOUR MILLION AND NO/100 DOLLARS ($4,000,000.00) in monthly installments of $333,333.00 each payable in advance on the first (1st) day of each month during the Term prorated for partial months.  If the monthly rent payment is not received prior to the tenth (10th) of any month, or any other charge or additional rent due hereunder shall not be received when due, then a late fee in the amount of five percent (5%) of the amount due which shall be due Lessor from Lessee within ten (10) days of written demand therefore.

5.Additional Payments and Expenses To Be Borne By Lessee.  In addition to the monthly rent set forth herein, Lessee shall pay the following:

a.Real Property Taxes and Assessments.  Lessee will pay directly to the taxing authority before delinquency, all real property taxes and assessments of every description assessed against the Premises that Lessor or Lessee in respect thereof may be assessed or become liable, whether assessed to or payable by Lessor or Lessee, during the term of this Lease, pro rated for periods prior to the Commencement Date and as of the Termination Date.

b.Utility Charges and Service.  Lessee will pay, before delinquency, all charges for potable water, irrigation water, gas, sewer service, refuse collection, electricity, telephone, cable television, and other utility and similar charges arising from the use of the Premises.  Lessee acknowledges that sewage treatment for the clubhouse is provided through a sewage treatment plant (“STP”) located on a portion of the Premises and that Lessee shall be responsible for all costs of operating, maintaining and repairing the STP during the term of this Lease.  Unless caused by the gross negligence or willful misconduct of Lessor, Lessor shall not be responsible for any interruption or failure in the supply of any utilities to the Premises.

c.Tax on Lease Payments.  In addition to the rents reserved above, Lessee shall pay to Lessor, as additional rent, together with each payment of rent or any other payment required hereunder which is subject to the State of Hawaii general excise tax on gross income, as it may be amended from time to time, or any successor or similar tax, an amount which, when added to such rental or other payment (currently 4.166% of each such payment), shall yield to the Lessor, after deduction of all such tax payable by Lessor with respect to all such rent and other payments, a net amount equal to that which Lessor would have realized from such payments had no such tax been imposed.

d.Other Taxes.  Further Lessee shall be responsible for and shall pay before delinquency all municipal, state or county taxes assessed during the term of this Lease against it by reason of the conduct of its business in the Premises or with respect to personal property of any kind, owned by or placed in, upon or about the Premises by and/or at the expense of Lessee

e.Security Deposit.  Lessee, contemporaneously with the execution of this Lease, has deposited with Lessor the sum of $333,333.00 to be held by Lessor as security for the faithful performance by Lessee of all of the terms, covenants and conditions of this Lease by Lessee to be kept and performed during the term hereof.  The security deposit may be commingled by Lessor with other funds of the Lessor and shall bear no interest.  If, at any time during the term of this Lease, any of the rent herein reserved shall be overdue and unpaid beyond applicable cure periods, or any other sum payable by Lessee to Lessor hereunder shall be overdue and unpaid beyond applicable cure periods, then Lessor may, at the option of Lessor (but Lessor shall not be required to) appropriate and apply any portion of said deposit to the payment of any such overdue rent or other sum.  In the event of the failure of Lessee to keep and perform any of the terms, covenants and conditions of this Lease to be kept and performed by Lessee beyond applicable cure periods, then at the option of Lessor said Lessor may appropriate and apply said entire deposit, or so much thereof as may be necessary, to compensate Lessor for all loss or damage sustained or suffered by Lessor due to such breach on the part of Lessee.  Should the entire deposit, or any portion thereof, be appropriated and applied by Lessor for the payment of overdue rent or other sums due and payable to Lessor by Lessee hereunder, then Lessee shall, upon the written demand of Lessee’s, forthwith remit to Lessor a sufficient amount in cash to restore said security to the amount held by Lessor prior to such appropriation and application and Lessee’s failure to do so within ten (10) days after receipt of such demand shall constitute a default hereunder entitling Lessor to immediately invoke the remedies set forth in paragraph 35, including the termination of this Lease.  Should Lessee comply with all of said terms, covenants and conditions and promptly pay all of the rentals herein provided for as the same fall due, and all other sums payable by Lessee to Lessor hereunder, the said deposit shall be returned in full to Lessee after Lessee shall have vacated the Premises at the end of the term of this Lease or upon the earlier termination of this Lease.  In the event any bankruptcy, insolvency, reorganization or other creditor-debtor proceedings shall be instituted by or against Lessee, the security deposit shall be deemed to be

applied first to payment of any rents and/or other charges due Lessor for all periods prior to the institution of such proceedings, and the balance, if any, of the security deposit may be retained by Lessor in partial liquidation of Lessor’s damages.  Lessor may transfer and/or deliver the security, as such, to any purchaser of Lessor’s interest in the Premises and thereupon Lessor shall be discharged from any further liability in reference thereto.

6.Guaranty.  This Lease and the terms, provisions and obligations contained herein, including, without limitation, on completion of the Irrigation Work, will be guaranteed by Maui Land & Pineapple, Inc. a Hawaii corporation (“Guarantor”), pursuant to a guaranty agreement in the form attached hereto as Exhibit B.

7.Acceptance Of Premises.

a.Premises in “As Is, Where Is” Condition.  It is expressly understood and agreed that Lessor has not made any representation or warranty, express or implied, regarding any aspect of the Premises including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, suitability, habitability, quality, physical condition, value or profitability, and Lessor hereby disclaims any and all liability for any and all such representations and warranties.  Lessee agrees that it has examined and investigated the Premises prior to the execution of this Lease and that Lessee has relied solely upon such examinations and investigations in leasing the Premises.  Without limiting the generality of the foregoing, Lessee acknowledges that (x) it has made all inspections, investigations and analyses deemed necessary or appropriate to determine compliance by the Premises with all Hazardous Materials Laws that may apply to the Premises, and (y) Lessor has made no representation or warranty, express or implied, concerning the Premises’ compliance with Hazardous Materials Laws.  Lessee acknowledges and agrees that it is leasing the Premises in its “as is, where is” condition, with all faults, if any, and subject to termination rights described herein, that Lessee has assumed all risks regarding all aspects of the Premises, and the condition thereof, including, without limitation:  (i) the risk of any physical condition affecting the Premises including, without limitation, the existence of any Hazardous Materials, the existence of any soils conditions, or the existence of archeological or historical conditions on the Premises; (ii) the risk of any damage or loss to the Premises caused by any means including, without limitations, tsunami, flood, earthquake or volcanic eruption; and (iii) the risk of use, zoning, habitability, merchantability or quality of the Premises or the suitability of the Premises for its use.  Except as otherwise described herein, Lessee expressly releases Lessor from any and all liability and claims that it may have against Lessor, its successors and assigns with regard to Hazardous Materials presently existing or hereafter placed on the Premises, and Lessee hereby agrees to indemnify, defend and hold Lessor harmless from and against any and all claims and demands for loss or damage, including claims for personal injury, property damage or wrongful death, arising out of or in connection with a release by Lessee during the Term of Hazardous Materials in violation of Hazardous Materials Laws (collectively, “Lessee Hazmat Liability”).  Lessee shall not be responsible for any Hazardous Materials released in, on, under and about the Premises by Lessor (collectively “Lessor Hazmat Liability”).  Lessor shall be and remain liable for all, Lessor Hazmat Liability, on, under or about the Premises, and for all clean-up and remediation thereof.  Lessor shall and does hereby indemnify, defend and hold harmless Lessee and Lessee’s members, officers, directors, agents, employees and invitees from and against any and all claims, lawsuits, liabilities, costs, fees (including reasonable attorney’s fees) and expenses of every kind and nature relating to or rising from a Lessor Hazmat Liability.  The provisions of this paragraph 7 shall survive the termination of this Lease.

b.Adjacent and Nearby Property Uses.  Lessee, for itself and any person or entity claiming by, through or under it, understands and acknowledges that the Premises are adjacent to or nearby lands used for the operation of a pineapple plantation and other agriculture related activities and such other uses as may be permitted by law on said lands, and that Lessee desired and sought the Premises with the understanding that the Premises may be affected by nuisance or hazards to persons and property from such operations and related activities.  Lessee covenants and agrees for itself, its permitted assigns, transferees, and any other party claiming by, through or under it that it assumes all such risks associated with such location and that it shall defend and hold Lessor harmless from any liability, claims or expenses, including attorneys’ fees, property damage, personal injury, or wrongful death arising from such operations and activities, and further covenants and agrees that the owners and occupants of such lands shall have the right, in the nature of an easement, to perpetually discharge, emit, diffuse, and inflict over and upon the Premises noise, smoke, soot, dust, lights, noxious vapors, odors, and other nuisances of every description arising from or incidental to the operation of the foregoing and other activities, subject only to zoning and other legal restrictions on use.

8.Use; Continuation of Golf Course Operations By Lessee.  Prior to the date of this Lease, Lessee was the owner of the Premises and used the Premises for the operation of the 18-hole championship Kapalua Plantation Golf Course, including a clubhouse, pro shop, driving range, practice facilities and a subleased restaurant operation (the “Golf Course Operations”).  Lessee shall continue to use the Premises during the term hereof solely for the Golf Course Operations and for no other purpose without the prior written consent of Lessor, which consent may be withheld by Lessor in its sole discretion.  In connection with Lessee’s use and occupancy of the Premises, Lessee agrees as follows:

a.Golf Course Standard.  So long as Lessor abides by all of its obligations hereunder, including Lessor’s obligation to make capital repairs and replacements,  and otherwise to perform the Lessor Work (defined below) Lessee shall operate the Golf Course in a manner that will ensure that the Golf Course would be reasonably considered by an independent person knowledgeable about the operation of resort golf courses in Hawaii to be among the top tier of resort golf courses open to public play on the Islands of Maui and Lanai (the “Golf Course Standard”).  The Golf Course’s compliance with the Golf Course Standard as of the date of this Lease may be evidenced by, among other things, the fact that the Golf Course is ranked by Golf Digest Magazine as one of America’s Greatest Resort Golf Courses, and as one of the top 75 Best Resort Courses in North America, and is currently recipient of Golf Course World’s Reader’s Choice Awards. Other Maui and Lanai golf courses which in addition to the Golf Course are agreed to meet the Golf Course Standard as of the date of this Lease are the Challenge at Manele, the Experience at Koele, the Royal Kaanapali and the Wailea Gold golf course.

b.Golf Course Agreements.  Lessee shall, at Lessee’s sole cost and expense, observe and perform all of the Lessor’s obligations under (i) that certain Second Amended and Restated Golf Course Use Agreement, dated March 27, 2007, as amended, and that certain Signature Events Agreement, dated March 27, 2007 made by and among Maui Land & Pineapple, Inc. (“MLP”), W2005 Kapalua/Gengate Hotel Realty, L.L.C. and The Ritz-Carlton Hotel Company, L.L.C., (ii) that certain Management & Site Agreement dated June     , 2007 made by and between Kapalua Maui Charities, Inc. and MLP regarding the Mercedes-Benz Championship, (iii) Agreement for Water Delivery (Plantation Golf Course), dated March 27, 2009 made by and between MLP and Lessor, (iv) that certain Grant of Golf Course Facilities Easement, dated March 27, 2009 made by and between MLP and Lessor, (v) the easements

and agreements listed in that certain Assignment of Easements and Agreements, dated March 27, 2009 made by Lessee in favor of Lessor, (vi) the Declaration of Covenants, Conditions and Restrictions (Plantation Course), dated March 27, 2009 made by MLP as Declarant, (vii) the contracts and agreements described in that certain Assignment and Assumption of Contracts, dated March 27, 2009 made by and between Lessee and Lessor, (viii) that certain Golf Course Use Agreement (Kapalua Club), dated March 27, 2009 between MLP and Lessor, (ix) that certain Nextel Site Agreement, dated November 10, 1999, as amended, and (x) that certain Grant of Reservoir, Waterline and Well Declarant Easement, dated March 27, 2009 made by and between MLP and Lessor.  During the term of this Lease, Lessee shall be entitled to all rents, reimbursements or other payments otherwise due Lessor under such agreements which shall be prorated for the periods prior to the Commencement Date and through the Termination Date based on the actual number of days in the respective months when such dates occur and the actual number of days elapsed.  Lessee shall have no right to amend the terms and conditions of any of the foregoing agreements or instruments without the prior written consent of Lessor, which consent may be withheld by Lessor in its sole discretion.

c.Restaurant Sublease.  Lessee shall, at Lessee’s sole cost and expense, observe and perform all of the Lessor’s obligations as Landlord under that certain Restaurant Lease dated February 7, 1991, as amended and extended, with P.H.K., Inc., as Tenant (the “Restaurant Lease”).  During the term of this Lease, Lessee shall be entitled to all rents and other periodic charges payable by Tenant under the Restaurant Lease which shall be prorated for the periods prior to the Commencement Date and following the Termination Date based on the actual number of days in the respective months when such dates occur and the actual number of days elapsed.  Lessee shall have no right to amend the Restaurant Lease without the prior written consent of Lessor, which consent may be withheld by Lessor in its sole discretion.

d.Declarations.  Lessee shall, at Lessee’s sole cost and expense, observe and perform all of the Lessor’s obligations, including payment obligations, under (i) the Amended and Restated Declaration of Covenants and Restrictions for the Kapalua Resort dated September 30, 1987, as amended from time to time, and (ii) the Plantation Estates Declaration of Covenants, Conditions and Restrictions dated April 6, 1990, as amended from time to time and (iii) the Declaration of Covenants, Conditions, & Restrictions (Plantation Course) dated concurrently herewith.  Any payment obligations of Lessor under such Declarations shall be prorated for periods prior to the Commencement Date and following the Termination Date based on the actual number of days in the respective billing periods when such dates occur and the actual number of days elapsed.

9.Operational Plans and Reports.

a.Annual Plans.  Lessee shall prepare and submit to Lessor for Lessor’s reasonable approval an annual plan for the operation of the Golf Course by Lessee, which plan shall include Lessee’s projected income and budgeted expenses for the year, including the number of rounds projected to be played during such year broken down by each guest or other category, the amount to be expended by Lessee during such quarter for the replacement of the Golf Course irrigation system, a schedule of the Lessor-approved capital improvements to be completed in such year and such other information as may be reasonably requested by Lessor.  The annual plan for calendar year 2009 will be submitted to Lessor by April 1, 2009 and thereafter not less than sixty (60) days prior to the start of each subsequent calendar year during the term of the Lease.  Along with each annual plan, Lessee shall also

submit to Lessor a report on Lessee’s compliance with the Golf Course Standard described in paragraph 8(a) above.

b.Quarterly Reports.  Within thirty (30) days of the end of each calendar quarter during the term of this Lease, Lessee shall provide Lessor with a written report showing the operating results for such quarter and year to date, including income and expenses, the number of golf rounds played, including paid rounds by each guest or other category, expenditures made for capital improvements approved by Lessor, the amount expended by Lessee for the replacement of the Golf Course irrigation system and such other information as Lessor may reasonably request.

10.Golf Course Irrigation System.  Lessee shall, at its own cost and expense, but subject to the Lessee Irrigation System Cap (defined below), and the terms and provision set forth herein, complete the replacement and/or repair of the Golf Course irrigation system,  (the “Irrigation Work”), pursuant to plans and specifications approved by Lessor in its reasonable discretion.  Notwithstanding anything to the contrary contained herein, Lessee’s contribution to the cost of the Irrigation Work shall not exceed the total sum of Five Million Dollars ($5,000,000) (the “Lessee Irrigation System Cap”).  Lessee will provide to Lessor plans and specifications for the Irrigation Work (the “Irrigation Plans”) no later than ninety (90) days following the Effective Date.  Lessor will promptly review the Irrigation Plans and either approve or disapprove of the Irrigation Plans by delivery to Lessee of written notice.  If disapproved, the  parties will thereafter work in good faith to reach agreement on the Irrigation Plans.  Promptly following Lessor’s approval, Lessee will commence to provide all necessary governmental permits necessary to construct the Irrigation Work.  Lessee shall use commercially reasonable efforts, subject to force majeure delays and Lessor delays, to complete the Irrigation Work within eighteen (18) months (the “Construction Period”) of receipt by Lessee of (i) Lessor’s reasonable approval of the plans and specifications for the Irrigation Work and (ii) all necessary building permits.  Lessee will complete the Irrigation work in accordance with the approved plans and specifications, all laws and paragraphs 12, 13 and 15.  Lessee’s obligation to complete the Irrigation Work in accordance with the Irrigation Plans will survive expiration or earlier termination of this Lease.

11.Other Improvements.  Lessee shall prepare and submit to Lessor for Lessor’s reasonable approval an annual capital improvements budget for the Golf Course Operations which shall take into account the level of capital expenditures made by Lessee for the Golf Course Operations during the three (3) calendar years prior to the Commencement Date.  The budget will be submitted to Lessor by April 1, 2009 for calendar year 2009 and thereafter not less than sixty (60) days prior to the start of each subsequent calendar year during the term of this Lease.  The capital improvement budgets prepared by Lessee shall stipulate which items are to be funded exclusively by Lessee (i.e. costs and expenses of the Irrigation Work up to the Lessee Irrigation System Cap) and those capital expenditures that constitute exclusively a Lessor expense.  Lessor shall have no obligation to approve line items in the capital improvement budget that exceed in the aggregate $342,500 annually. Lessor shall reimburse Lessee for amounts paid by Lessee to complete capital improvements included in the annual budgets approved by Lessor within thirty (30) days of Lessor’s receipt of Lessee’s written request for such reimbursements accompanied by such documentation as may be reasonably requested by Lessor to confirm that the capital improvements have been completed by Lessee free and clear of all liens for such work.  Any sums not paid by Lessor to Lessee within ten (10) days of written notice from Lessee that the same is past due shall bear interest from the date due until paid in full at the rate of twelve percent (12%) per year.

12.Alterations and Improvements.

12.1Lessee Obligation.  Unless set forth in the annual plan, Lessee shall not make any alterations, improvements or additions in or to the Premises, nor make any repairs requiring any such alteration, improvements or additions, nor install any antennas, trade fixtures, exterior signs, interior or exterior lighting, plumbing fixtures, shade or awnings, without the prior written consent of Lessor, which consent shall not be unreasonably withheld, delayed or conditioned.  As a prerequisite to any such consent, Lessee shall comply with and/or satisfy each of the following conditions unless any of such conditions or requirements shall be waived by Lessor in its sole discretion:

a.Lessee shall obtain Lessor’s approval of Lessee’s construction contractor(s) and architect who shall be licensed in the State of Hawaii, and Lessee shall submit complete plans and specifications for such alterations, improvements or additions to the Lessor for Lessor’s prior written approval.

b.Lessee, or its architect, shall, if plans and specifications are necessary, deliver to Lessor upon completion of construction a certification setting forth the total cost of such construction and certifying that such construction has been completed in compliance with the approved plans and specifications therefor.

c.Lessee shall furnish Lessor with evidence that all governmental approvals necessary to commence construction have been obtained, including, without limiting the generality of the foregoing, a building and/or grading permit.  Any work, (which is not a Lessor responsibility) not acceptable to any governmental authority or agency having or exercising jurisdiction over such work shall be promptly replaced, at Lessee’s sole expense, notwithstanding any failure by Lessor to object to any such work, and Lessor shall have no responsibility therefor.

d.In addition to any other insurance required under this Lease, during any construction Lessee and/or its contractor shall maintain such commercial general liability and other insurance policies as may be reasonably specified by Lessor, all of which policies shall be reasonably satisfactory to Lessor in form, content and amount of coverage, insuring Lessor, Lessee and such other parties as Lessor shall reasonably specify against loss or damage to third parties or their property from hazards normally insured against in the construction industry with respect to construction of the type to be undertaken by Lessee.  Lessee shall deliver to Lessor certificates of insurance certifying that such insurance is in full force and effect prior to commencing the construction of any alterations, additions or improvement on the Premises.

e.Lessee shall reimburse Lessor for any expense actually incurred by Lessor by reason of repair or replacement of faulty work done by Lessee or its contractors.

f.All work by Lessee shall be diligently and continuously pursued from the date of its commencement through its completion.  Upon substantial completion of any construction, Lessee shall publish a “Notice of Completion” as required under Section 507-43(f) of the Hawaii Revised Statutes and file an affidavit of publication of said Notice in the Office of the Clerk of the Circuit Court of the Second Circuit, State of Hawaii, and shall provide a certified “filed” stamped copy thereof to Lessor.

12.2Lessor Obligations.  Except as otherwise required in this Lease, any and all capital repairs and replacements approved by Lessor in accordance with Section 11, excluding the Irrigation Work up to the Lessee Irrigation System Cap, or required to comply with laws and legal requirements, will be made at the sole cost and expense of Lessor (“Lessor Work”).

13.Protection Against Construction Liens.  Lessee shall promptly pay all contractors and materialmen, and shall keep the Premises free from any liens or encumbrances arising out of any work performed for Lessee, materials furnished for Lessee or obligations incurred by Lessee.  Lessee agrees to indemnify, defend and save the Lessor and the Premises harmless from and against any and all claims for mechanics’, materialmen’s or other liens in connection with any work by Lessee, except to the extent such claims are the result of Lessor’s failure to meet its funding obligations under this Lease, in which case Lessor agrees to indemnify, defend and save Lessee and the Premises harmless from and against any and all such claims and for any liens in connection with any Lessor Work.  If a mechanics’ or materialmen’s lien shall be filed against the Premises for, or purporting to be for, labor or material alleged to have been furnished or to be furnished to or for Lessee, Lessee shall bond against or discharge said lien within ten (10) days after the filing of the application for the lien.  If Lessee shall fail to bond against or discharge said lien as aforesaid, Lessor may pay the amount of such lien or discharge the same by deposit or by bonding against such lien.  In the event that Lessor shall discharge such lien as aforesaid, Lessor may require the lienor to prosecute an appropriate action to enforce such claim, and if said lienor shall prevail in its claim, Lessor may pay the judgment recovered thereon.  Any amount paid or expense incurred by Lessor pursuant to this paragraph 13 shall be paid by Lessee to Lessor upon demand, together with interest thereon from the date of payment by Lessor at the rate provided in paragraph 36 hereinbelow.

14.Disclaimer.  Notwithstanding anything in this Lease contained to the contrary, neither Lessor’s approval nor the approval of any architect or engineer engaged by Lessor of any plans or specifications submitted to Lessor or such architect or engineer pursuant to the provisions of this Lease shall be deemed a warranty or other representation on Lessor’s part to any person that such plans or specifications or the improvements therein described are legal or structurally safe or sound.

15.Alterations Belonging to Lessor.  All alterations, improvements and additions to the Premises shall remain for the benefit of the Lessor and shall not be removed unless otherwise consented to in writing by Lessor, and shall be presumed to become an integral part of said Premises.

16.Waste; Compliance with Law.  Lessee will not make or suffer any waste or strip of the Premises.  Lessee will not use the Premises or suffer the same to be used for any purpose or purposes in violation of any condition or provision of this Lease, or of any law, ordinance or regulation of any public authority, or of any policy of insurance upon said Premises, or do or permit to be done any act which will occasion or constitute a ground for cancellation of any such insurance policy or for any increase in the rate of insurance on said Premises, and will not commit or suffer to be committed any nuisance upon said Premises or act which may disturb the quiet enjoyment of others.

17.Prohibited Conduct.  Lessee will not conduct or permit to be conducted any auction and/or sale by auction on the Premises or any fire sale or bankruptcy sale.

18.Signs and Advertising.  Lessee will not, without the prior written approval of Lessor, display, erect, install, paint or place any sign, logo, emblem, or other advertisement whatsoever in, on or about the exterior of the Premises.  Lessor acknowledges that the signage on the Premises on the date of this Lease is approved by Lessor.

19.Liens and Encumbrances.  Lessee will not commit or suffer any act or neglect whereby said Premises or any improvements thereon, or the estate of Lessee or the Lessor therein, shall at any time during said term become subject to any attachment, judgment, lien, charge or encumbrance whatsoever, and will indemnify and hold the Lessor harmless from all loss, costs and expense, including attorneys’ fees, with respect thereto.

20.Hazardous Materials.

a.Use of Hazardous Materials.  Except as provided herein, Lessee shall not cause any Hazardous Material to be brought upon, kept or used in or about the Premises by Lessee in violation of Hazardous Materials Laws.  Lessee may use and store on the Premises such items as may be classified as Hazardous Materials but which are typically used in golf course operations (e.g. fertilizers, pesticides, herbicides, machinery lubricants, cleaning and maintenance supplies) provided that the same are used, kept, stored and disposed of in full compliance with all applicable Hazardous Materials Laws.  If Lessee breaches the obligations stated in the preceding sentences, or if the presence of Hazardous Material on the Premises caused by Lessee results in contamination of the Premises in violation of Hazardous Materials Laws, then Lessee shall indemnify, defend and hold Lessor harmless from any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses (including, without limitation, diminution in value of the Premises, and sums paid in settlement of claims, attorneys’ fees, consultation fees and expert fees) which arise during or after the Lease term as a result of such contamination.  This indemnification of Lessor by Lessee includes, without limitation, costs incurred in connection with any investigation of site conditions or any clean-up, remedial, removal or restoration work required by any federal, state or local governmental agency or political subdivision because of a release of Hazardous Material by Lessee during the Term.  Without limiting the foregoing, with respect to any Hazardous Material on the Premises released by Lessee during the Term which results in any contamination of the Premises in violation of Hazardous Materials Laws, Lessee shall promptly take all actions at its sole expense as are necessary comply with Hazardous Materials Laws.  The foregoing indemnity shall survive the expiration or earlier termination of this Lease.

b.Definitions.  As used herein, the term “Hazardous Material” means any hazardous or toxic substance, material or waste, including, but not limited to, those substances, materials and wastes listed in the United States Department of Transportation Hazardous Materials Table (49 CFR 172.101) or by the United States Environmental Protection Agency as hazardous substances (40 CFR Part 302) or as defined in the Hawaii Hazardous Waste Law (Haw. Rev. Stat. Chapter 342J) and amendments thereto, or such substances, materials and wastes that are or become regulated under any applicable local, state or federal law.

c.Disclosure.  Upon Lessor’s written request, Lessee shall disclose to Lessor the names and amounts of all Hazardous Material, or any combination thereof, which were stored, used or disposed of or on the Premises, or which Lessee intends to store, use or dispose of or on the Premises in the future.

d.Inspection.  Lessor and its agents shall have the right, but not the duty, to inspect the Premises during normal business hours following 48 hours’ prior written notice to determine whether Lessee is complying with the provisions of this paragraph 17.  If Lessee is not in compliance with the provisions of this paragraph 17, Lessor shall have the right to immediately enter upon the Premises to remedy any contamination caused by Lessee’s failure to comply notwithstanding any other provision of this Lease.  Lessor shall use reasonable efforts to minimize interference with Lessee’s business but shall not be liable for any interference caused thereby.

e.Reports.  To the extent Lessee is required to file any reports with the United States Environmental Protection Agency or any other federal, state, city or county agency having jurisdiction over Hazardous Material, Lessee shall concurrently provide Lessor a copy of such report.

21.Compliance With Disability Access Laws.  Except as otherwise set forth herein, Lessee hereby covenants and agrees with Lessor that Lessee shall at all times during the term of this Lease comply with any and all governmental regulation of the Premises regarding access of disabled persons, including without limitation, Titles III and V of the Americans with Disabilities Act of 1990, 42 U.S.C. Sec. 12101 et seq. or any other similar federal, state or local laws or ordinances and the regulations promulgated thereunder (collectively, the “Disability Access Laws”); provided, however, the costs of any such compliance, if required as a result of any changes to the, or new, Disability Access Laws after the Effective Date, will be the sole responsibility of Lessor.  Unless any such failure is the result of Lessor failing to pay for the cost of any Landlord Work related to the compliance with Disability Access Laws (in which case the indemnity contained herein will be of Lessee by Lessor), Lessee shall indemnify, defend and hold Lessor harmless from and against any and all claims and demands for loss or damage, including claims for discrimination, personal injury, monetary damage or injunctive relief arising out of or in connection with any failure or alleged failure of the Premises to comply with the Disability Access Laws, and, unless caused by the failure of Lessor to pay for Lessor’s Work, Lessee shall reimburse Lessor for all costs and expense, including reasonable attorneys’ and other professional or consultants’ fees, paid or incurred by Lessor in connection with the defense of any such claims including, but not limited to, all costs for research regarding settlement or other preventive measures which Lessor may take prior to the filing of such action or to attempt to prevent the filing of such an action.

22.Repairs and Upkeep by Lessee.  Lessee shall at all times during the term hereof and at its own expense, keep the Premises in good order, condition and repair, reasonable wear and tear damage and destruction and Lessor Work excepted, including such repairs, and alterations as may be required by fire insurance companies, by law, ordinance or regulation of any public authority relating to the use or occupancy of the Premises or otherwise.  Lessee shall, if deemed necessary by Lessor, repaint the exterior of the buildings and improvements in the Premises once during each three (3) years during the term of this Lease within ninety (90) days after Lessor’s notice to Lessee to do so.  Lessee will, at its own expense, replace plate glass and other glass in the Premises which may become damaged or broken.  If Lessee fails to commence repairs required by the terms hereof to be made by it within ten (10) days after written notice from Lessor of the necessity therefor and specifying the nature thereof, and if Lessee thereafter fails to prosecute such work diligently to completion, then Lessor shall have the right to make or complete and pay for such repairs and bill Lessee for the cost thereof or to terminate this Lease for breach of covenant in the event Lessor makes such repairs but Lessee does not pay Lessor pursuant to paragraph 22 herein.  Lessor shall have the right to enter upon the Premises at times reasonably established by Lessor and Lessee for the purpose

of making such repairs and to erect any necessary scaffolding or barricades.  Failure on the part of Lessor to make repairs or alterations as herein provided shall in no event constitute a breach of this Lease.  That Lessee will keep the Premises, including any loading or service areas, in a clean, orderly and sanitary condition and free from obstructions, insects, rodents, vermin and other pests, and shall store all trash and refuse within the Premises or in areas designated therefor by Lessor and share in the cost of having the same picked up regularly.

23.Right of Access.  Lessor shall have access at all reasonable times to the Premises and each and every part thereof for purposes of inspecting same; making repairs (if Lessor elects to undertake any repairs due to Lessee’s failure to do so), and Lessor shall be allowed to take all material into and upon the Premises that may be required therefor without the same constituting an eviction of Lessee in whole or in part, without the lease rental and other fees and charges abating and without any liability to Lessee or any loss or interruption of business of Lessee or any loss of occupation or quiet enjoyment of the Premises occasioned thereby; posting such notices as it may deem necessary for its protection or for protection of the Premises; and for the purpose of showing same to prospective tenants, purchasers, mortgagees, and/or others.

24.Expenditures by Lessor on Behalf of Lessee.  If Lessor shall make any expenditure or incur any liability which Lessee is required to make or pay under this Lease, the amount thereof shall be added to and deemed a part of the next succeeding payment of rent thereafter falling due, and said amount shall bear interest at the rate provided in paragraph 39 hereinbelow from the date paid by Lessor until repaid by Lessee.  Lessor may, at its option and at any time, terminate this Lease for failure on the part of Lessee to pay such amounts within thirty (30) days of written notice when due.

25.Indemnity.  Lessee, as a material part of the consideration to Lessor for this Lease, will and does hereby assume all risk of bodily injury, wrongful death and/or property damage, business interruption or economic loss occasioned by any accident, fire or nuisance made or suffered by Lessee or its officers, directors, agents, employees, contractors, invitees, customers, sublessees and licensees (herein collectively called “Lessee’s Affiliates”) in the Premises or resulting from any failure on the part of Lessee to maintain the Premises in a safe condition, and Lessee hereby waives on its own behalf, and on behalf of Lessee’s Affiliates, all claims in respect thereof against Lessor and Lessor’s shareholders, employees, agents, licensees, contractors and invitees (herein collectively called “Lessor’s Affiliates”) except claims arising from the acts or omissions of Lessor or Lessor’s Affiliates, and acknowledges that this assumption of risk by Lessee has been bargained for in determining rent and other obligations of Lessee under this Lease.  Lessee hereby agrees to indemnify and save harmless Lessor and Lessor’s Affiliates from and against any and all claims for bodily injury, wrongful death and/or property damage, business interruption and economic loss by any person (including without limiting the generality of said term, Lessee’s Affiliates and Lessor’s Affiliates) arising out of, caused by, occasioned by or resulting from any accident, fire or nuisance in the Premises or Lessee’s failure to maintain the Premises in accordance with this Agreement, except where such injury, death or loss is caused by the acts or omissions of Lessor or Lessor’s Affiliates.  Lessee further agrees to indemnify and save harmless Lessor, and Lessor’s Affiliates, from and against any and all liability, loss, costs, charges, fines, penalties, obligations or expenses of whatsoever nature in connection with any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising from the conduct or management of any work or thing whatsoever done by Lessee or Lessee’s Affiliates in or about the Premises during the Term, or from any transactions of Lessee concerning the Premises, and will further indemnify and save Lessor and Lessor’s Affiliates harmless from any and all claims arising from

any breach or default on the part of Lessee in the performance of any covenant or agreement on the part of Lessee to be performed pursuant to the terms of this Lease, or arising from any act on the part of Lessee or Lessee’s Affiliates, and shall reimburse Lessor and Lessor’s Affiliates for all costs, reasonable attorneys’ fees, expenses and liabilities incurred in connection with any such claim or any action or proceeding brought thereon.  Lessee further agrees that in case of any claim, demand, proceeding, action or cause of action, threatened or actual, against Lessor or Lessor’s Affiliates resulting from the matters for which Lessee indemnifies Lessor hereunder, Lessee, upon the written request of Lessor or any of Lessor’s Affiliates, shall defend Lessor and Lessor’s Affiliates at Lessee’s expense by counsel reasonably satisfactory to Lessor or Lessor’s Affiliates, as the case may be.  If Lessor or any of Lessor’s Affiliates does not request such defense or Lessee does not provide such defense, then Lessee will reimburse Lessor and Lessor’s Affiliates as aforesaid, and agrees to cooperate with Lessor and Lessor’s Affiliates in such defense, including, but not limited to, providing of affidavits and testimony upon request of Lessor or Lessor’s Affiliates.

26.Assumption of Risk by Lessee.  Lessee, as a material part of the consideration to Lessor for this Lease, will and hereby does assume all risk of loss or damage to Lessee’s personal property, machinery, equipment, fixtures, supplies, merchandise, and other personal property, by whomsoever owned, stored or placed in, upon or about the Premises, and does hereby agree that Lessor shall not be responsible for loss or damage to any such property, unless caused by the willful act or gross neglect of Lessor or Lessor’s Affiliates, and Lessee waives all claims in respect thereof and acknowledges that this assumption of risk by Lessee has been bargained for in determining rent and other obligations of Lessee under this Lease.  Without prejudice to the generality of the foregoing, Lessor shall not be liable for loss or damage to any property entrusted to Lessor or Lessor’s Affiliates nor for loss or damage to any property at any time stored or kept in the Premises, either from rain or from any other water which may leak, issue or flow from any part thereof, or from the pipes or plumbing of the same or from any other place or quarter, nor for any loss or damage to property in the Premises caused by theft, or by accident involving escalators, or for damage or any character.

27.Property Insurance.

a.In General.  Lessee shall at its own expense and at all times during the term keep all buildings, improvements, fixtures, and personal property by whomsoever installed or constructed, now existing or hereafter erected on the Premises, insured against (i) all of the risks covered by a standard ISO Commercial Property Special Causes of Loss Form written on a replacement cost basis, without deduction for depreciation, with an agreed value endorsement, (ii) a “difference in conditions” policy providing coverage limits for risk of loss by earthquake of $25,000,000 and flood of $20,000,000, (iii) such other hazards or risks which a prudent businessman would insure against, including plate glass insurance and business interruption insurance in an amount sufficient to insure payment of rent, real property taxes and assessments, insurance and other fixed costs for not less than twelve (12) months during any interruption of Lessee’s business on the Premises from any risk covered under (i) and (ii) above, and (iv) in time of war against war damage, if available at reasonable cost.  This coverage shall be in an amount equal to the full replacement cost of such buildings, improvements, fixtures and personal property and shall not have deductibles in excess of $250,000 AOP and flood, 2% wind, and 5% earthquake.  Lessee hereby waives any and all rights of subrogation which it may have against Lessor and any insurance carrier of Lessor.  Such insurance shall contain a standard mortgagee clause which shall provide that any reference to a mortgagee in such policy shall mean and include all holders of mortgages of any interests in the Premises, in their respective order and preference as provided in their respective

mortgages; provide that such insurance as to the interest of any mortgagee shall not be invalidated by any act or neglect of Lessor, Lessee or any person claiming by, through, or under any of them; and contain a waiver of any provision invalidating such mortgagee clause by reason of the failure of any mortgagee or Lessor, Lessee, or any person claiming by, through, or under any of them to notify the insurer of any hazardous use or vacancy, any requirement that any mortgagee pay any premium thereon, or any contribution clause.

b.Use of Insurance Proceeds.  In case the buildings, improvements or fixtures required to be insured in subparagraph 27.a above or any part thereof shall be destroyed or damaged by fire or such other casualty required to be insured against, then and as often as the same shall happen, all proceeds of such insurance, including the interest therein of Lessor and the interest therein of Lessee shall be made available for and used with all reasonable dispatch by Lessee in rebuilding, repairing, replacing or otherwise reinstating the buildings, improvements or fixtures so destroyed or damaged in a good and substantial manner according to the plan and elevation thereof or according to such modified plan for the same or substitute buildings, improvements or fixtures as shall be approved in writing by the Lessor in accordance with paragraphs 12 and 13 above.  If the available insurance proceeds shall be insufficient for rebuilding, repairing, replacing or otherwise reinstating such buildings, improvements or fixtures in the manner provided in this paragraph above, then Lessor shall provide the balance of all funds required to completely rebuild, repair, replace or otherwise reinstate such buildings, improvements or fixtures; provided, however, that Lessee shall be responsible for any deductible amounts or self-insured retentions and if Lessee fails to carry the types and amounts of insurance required by Section 27(a), then Lessee shall be responsible for any shortfall.

28.Liability Insurance.

a.In General.  Lessee shall maintain at its own expense during the term a policy or policies of “commercial general liability” insurance on an “occurrence” basis including coverage for bodily injury and property damage, personal injury and medical payments, naming Lessor as an additional insured thereunder, with limits not less than those set forth in subparagraph 28.b below.  The commercial general liability insurance shall specifically cover blanket contractual liability, fire damage legal liability, host liquor liability if liquor will be sold, serviced or manufactured on the Premises, personal and advertising liability, medical payments, premises and operations liability and products/completed operations liability.  Lessee shall periodically, but not less frequently than annually, reevaluate the scope of the risks covered and the liability limits of such insurance policies and, if necessary, increase such coverage or liability limits in order to provide coverage of risks and liability limits which a prudent businessman would provide under similar circumstances.  Lessee shall also increase the liability limits or the scope of the risks covered by such insurance policies to such higher levels or such broader scope of risks as Lessor may from time to time reasonably specify.

b.Coverage Amounts.

Minimum Liability Coverage Amounts:

(i)	$ 5,000,000 Each Occurrence
(ii)	$ 5,000,000 General Aggregate
(iii)	$ 5,000,000 Products & Completed Operations Aggregate

(iv)	$ 5,000,000 Personal and Advertising Injury
(v)	$ 1,000,000 Fire Damage (any one fire)
(vi)	$ 10,000,000 Umbrella Coverage
(vii)	$ 10,000,000 Excess Coverage

29.Worker’s Compensation and Employer’s Liability Insurance.  Lessee shall maintain at is own expense during the term of this Lease a policy or policies of “worker’s compensation” insurance with minimum limits as required by Hawaii Revised Statutes Title 21, Labor and Industrial Relations, and the rules and regulations promulgated thereunder, and a policy or policies of “employer’s liability” insurance with per accident and per disease limits not less than $5,000,000.00.  Both policies shall be in form and with coverages satisfactory to and approved by Lessor.  Lessee shall increase the liability limits or the scope of the risks covered by such insurance policies to such higher levels or such broader scope of risks as Lessor may from time to time reasonably specify.

30.Auto Liability Insurance.  Lessee shall maintain at is own expense during the term of this Lease a policy or policies of “commercial auto liability” insurance naming Lessor as an additional insured thereunder, in form and with coverage satisfactory to and approved by Lessor, with a combined single limit for bodily injury and property damage not less than $5,000,000.00.  The foregoing coverage may be placed through a combination of primary, umbrella and excess coverages.  The automobile liability insurance shall specifically cover all automobiles and other vehicles used by Lessee in connection with its operations at the Premises, whether owned or non-owned, leased, rented, borrowed or hired.

31.General Insurance Requirements.

a.Each policy of commercial property insurance and general liability insurance required in paragraphs 27 and 28 above shall:

(1)name Lessor as an additional insured and provide that the liability of the insurer thereunder shall not be affected by, and that the insurer shall not claim, any right of set-off, counterclaim, apportionment, proration, or contribution by reason of, any other insurance obtained by or for Lessor, Lessee, or any person claiming by, through, or under any of them;

(2)contain no provision relieving the insurer from liability for loss occurring while the hazard to buildings and personal property is increased, whether or not within the knowledge or control of, or because of any breach of warranty or condition or any other act or neglect by Lessor, Lessee, or any person claiming by, through, or under any of them;

(3)be specifically endorsed to provide that such policy may not be cancelled except upon the insurer giving at least thirty (30) days’ prior written notice thereof to Lessor, Lessee, and every mortgagee and other person having an interest in the Premises who has requested such notice of the insurer;

(4)be written by an insurance company rated A or better, Class size IX or better, by the Best’s Key Rating Guide, based upon the rating system in effect

on the date this Lease is signed, and in form and with coverage satisfactory to and approved in writing by Lessor.  In the event that Best’s changes its rating system or ceases to provide ratings at some later date, then such insurance company shall have a rating from Best (or some other comparable rating service if Best’s ceases to provide ratings) comparable to the “A or better, Class IX or better” requirement of the immediately preceding sentence; and

(5)be specifically endorsed to provide that they are primary policies, not contributing with and not in excess of any coverage that Lessor may carry, notwithstanding anything to the contrary contained in any policies obtained by Lessor.

b.A certificate of insurance listing all of the required coverages should be issued for Lessee.

32.Assignment and Subletting.  Lessee will not sublet the whole or any part of said Premises or grant any concession therein, or part with possession of the whole or any part of the Premises, or assign this Lease or any interest therein (nor may this Lease be assigned by operation of law) or hypothecate, mortgage or in any way create any lien on this Lease or the Premises or any interest therein without the consent in writing of Lessor first being obtained, and any such attempt without the prior consent in writing of Lessor shall be void for all purposes and Lessor shall then have the right and option to terminate this Lease as hereinafter provided.  Lessor may grant or withhold its consent in its sole discretion for any reason. It is further agreed that any consent given to any assignment, hypothecation, transfer of this Lease or parting of possession, or to any sublease of said Premises or a portion thereof, shall not be construed as a consent to any other further assignment, hypothecation, transfer, parting of possession or subletting or as a waiver of Lessor’s right to object to any assignment, hypothecation, transfer parting of possession, or sublease to which Lessor’s consent in writing has not been obtained.  It is further agreed that Lessee will remain liable in the event of any assignment, mortgage or sublease for the payment of the rental hereunder and for the observance and performance of all the terms, covenants and conditions herein contained and on the part of Lessee to be observed and performed.  Any change in the present ownership or control of Lessee’s business, directly or indirectly, whether as a result of any sale of assets, transfer of stock, merger, consolidation or otherwise, shall be deemed an assignment within the meaning of this provision; provided however, and notwithstanding anything to the contrary contained herein, no sale of assets, transfer of stock, merger or consolidation by Guarantor shall constitute an assignment hereunder.

33.Transfer of Control.  It is understood and agreed that Lessor must at all times be satisfied with the operator of the Premises from the standpoint of said operator’s experience, management ability and/or financial capacity, and that upon any merger or transfer of stock, directly or indirectly, involving a change in control of either of Lessee, Lessor shall have the right and option to terminate this Lease.

34.Subordination.  Lessee hereby subordinates its rights hereunder to any encumbrances shown on Exhibit A and to the lien of any mortgage or mortgages now or hereafter arranged by Lessor, to any bank, insurance company or other lending institution, against the land and improvements of which the Premises are a part and/or upon any buildings now on or hereafter placed upon said land, for all loans or advances made or hereafter to be made upon said security, provided in every case the mortgagee or mortgagees named in said mortgage or mortgages shall agree in a written instrument acceptable to Lessee to recognize this Lease in the event of foreclosure by judicial proceedings or otherwise, if Lessee is not then

in default beyond applicable cure periods.  Lessee hereby agrees to execute any instruments on a commercially reasonable form necessary or expedient to carry out the foregoing.

35.Default and Remedies.  If Lessee shall fail to pay said rent or any part thereof or any other monies which under the provisions of the Lease Lessee shall be obligated to pay, on or before the dates the same have become due and payable, no notice being required, demand made, or forfeiture declared, and such non-payment shall continue for ten (10) days, or fail in any other respect faithfully to observe or perform any condition or covenant in this Lease contained and on Lessee’s part to be observed and performed, including Lessee’s failure to achieve the Golf Course Standard set forth in paragraph 8.a above or to submit the annual operational plans described in paragraph 9.a above for Lessor’s approval, and any such failure shall continue for thirty (30) days following written notice from the Lessor to Lessee (or such longer time as is reasonably necessary so long as Lessee has commenced and is diligently prosecuting the cure); or if Lessee shall become insolvent or be adjudicated bankrupt; or shall make any general arrangement or assignment for the benefit of creditors or shall seek protection under any bankruptcy laws; or permit a lien to attach to the premises; or abandon the Premises; or suffer this Lease or any estate or interest hereunder to be taken under any mesne process or any writ of execution; or any other judicial order,  and any such event is not dismissed and cured with sixty (60) days, then and in any such event:

a.Right of Re-Entry; Termination.  The Lessor may at once enter into and upon the Premises or any part thereof in the name of whole, and upon or without such entry at Lessor’s option terminate this Lease, without service of notice of legal process, and thereupon take possession of the Premises and all improvements thereon, and thereby become wholly vested with all right, title and interest of Lessee therein and may expel and remove from said Premises Lessee and/or those claiming under it, and their effects, all without service of notice or resort to any legal process and without being deemed guilty of any trespass or becoming liable for any loss or damage which may be occasioned thereby, and without prejudice to any other remedy or right of action which the Lessor may have for collection of arrears of rent for other or preceding breach of covenant by Lessee.  If this Lease or any short form thereof is recorded or filed of record in Hawaii, termination may be made effective by Lessor by mailing a written notice to Lessee or such termination and recording or filing an affidavit thereof.

b.Summary Possession.  Whether or not Lessor shall have taken any action above permitted, Lessor may bring an action for summary possession in case of such default, and in any such action, service of prior notice or demand is hereby expressly waived.  Lessor may, at its option, assert its claim for unpaid rent in such action or may institute a separate action for the recovery of rent.

c.Removal of Persons or Property.  In the event of such resumption of possession under this Lease, whether by summary proceedings or by any other means, Lessor, or any receiver appointed by a court having jurisdiction, may dispossess and remove all persons and property from the Premises, and any property so removed may be stored in any public warehouse or elsewhere at the cost of and for the account of Lessee, and Lessor shall not be responsible for the care or safekeeping thereof, and Lessee hereby waives any and all loss, destruction, and/or damages or injury which may be occasioned in the exercise of any of the aforesaid acts.

d.Damages, Attorneys’ Fees and Costs.  Lessor may recover from Lessee all damages, reasonable attorneys’ fees and costs which may have been incurred by

Lessor as a result of any default of Lessee hereunder, including the expense of recovering possession.

e.Right to Re-let.  Should Lessor elect to reenter for Lessee’s default, as provided hereinabove, or should it take possession pursuant to legal proceedings or pursuant to any notice provided for by law, it may either terminate this Lease or it may, from time to time without terminating this Lease, and re-let said Premises or any part thereof for such term or terms (which may be for a term extending beyond the term of this Lease) and at such rental or rentals and upon such other terms and conditions as Lessor in its sole discretion may deem advisable; upon each such re letting all rental received by Lessor from such re-letting shall be applied, first, to the payment of any indebtedness other than rent due hereunder from Lessee to Lessor; second, to the payment of any costs and expenses of such re-letting; third, to the payment of rent due and unpaid hereunder; and the residue, if any, shall be held by Lessor and applied in payment of future rent as the same may become due and payable hereunder.  If such rentals received from such re-letting during any month be less than that to be paid during that month by Lessee hereunder, Lessee shall pay any such deficiency to Lessor. Such deficiency shall be calculated and paid monthly. Termination may, but need not necessarily, be made effective by the giving of written notice to Lessee of intention to end the term of this Lease, specifying a day not earlier than three (3) days thereafter, and upon the giving of such notice, the term of this Lease and all right, title and interest of Lessee hereunder shall expire as fully and completely on the day so specified as if that day were the date herein specifically fixed for the expiration of the term.  No re-entry or taking possession of said Premises by Lessor shall be construed as an election on its part to terminate this Lease unless a written notice of such intention is given to Lessee or unless the termination thereof be decreed by a court of competent jurisdiction.  Notwithstanding any such re-letting without termination, Lessor may at any time thereafter elect to terminate this Lease for such previous default.  Should Lessor at any time terminate this Lease for Lessee’s default, in addition to any other remedies it may have, Lessor may recover from Lessee all damages it may incur by reason of such default, including the cost of recovering possession of the Premises, reasonable attorneys’ fees, delinquent rent and other charges due through the date of termination and the discounted present value (computed at 8%) at the time of such termination of the rent and charges reserved in this Lease for the remainder of the stated term, all of which amounts shall be immediately due and payable from Lessee to Lessor.

36.Remedies Cumulative.  The various rights, options, elections and remedies of Lessor contained in the Lease shall be construed as cumulative and no one of them as exclusive of any of the other, or of any right or priority allowed by law.

37.Waiver of Breach.  The waiver by the Lessor of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of any subsequent breach of the same or of any other terms, covenant or condition herein contained; that the acceptance of rent by the Lessor shall not be deemed to be a waiver of any of the terms, covenants or conditions of this Lease, or of the remedies of Lessor herein (including the remedy of forfeiture of this Lease); that no term, covenant, condition or remedy herein shall be deemed to be waived by Lessor unless such waiver be in writing by Lessor.

38.Attorneys Fees.  If either party hereto institutes any action or proceeding in court to enforce any provision hereof or for damages or other relief by reason of any alleged breach of any provision hereof, the prevailing party shall be entitled to receive from the losing party all costs, including reasonable attorneys’ fees.  If any litigation or legal expense incurred by either party hereto in connection with any litigation commenced by or against the other party

(other than condemnation proceedings) in which it shall without fault be made by a party, then it will be entitled to recover against the opposite party all of its costs including reasonable attorneys’ fees.

39.Delinquent Payments.  If any payment or payments called for under this Lease is not paid on the date due, Lessor shall have the right, without waiving any breach or default by Lessee or any of its other rights herein, to demand and receive the unpaid sum together with the interest accrued thereon from the date of delinquency at the rate of one percent (1%) per month until paid.

40.No Accord And Satisfaction.  No payment by Lessee or receipt by Lessor of a lesser amount than the monthly rent herein stipulated shall be deemed to be other than on account of rents due, nor shall any endorsement or statement on any check or any letter accompanying any check or payment of rent be deemed and accord and satisfaction, and Lessor may accept such check or payment without prejudice to Lessor’s rights to recover the balance of such rent or other amount or pursue any other remedy in this Lease.  In the event that the rent or any other monies which are due hereunder by Lessee are delinquent, Lessor may, upon the receipt of any payments, apply them to any account or period it shall determine in its discretion.

41.Damage to Premises.  If there is a partial “material” or total destruction of the Premises and Lessor, in its sole discretion, elects not to rebuild or repair the same, this Lease shall terminate as of the date of such destruction upon written notice from Lessor to Lessee of Lessor’s determination not to rebuild or repair, such notice to be given within thirty (30) days of the date of such destruction.  In the event of such termination, Lessee shall forthwith surrender the Premises and shall be relieved of all liability for any further rental and Lessor shall refund any unearned rent paid in advance by Lessee and shall be thereby released from any obligation or duty to Lessee.  Lessee hereby waives any and all claims for damage and shall not be entitled to any damages for any loss occasioned by any such injury to or destruction of said Premises or any of Lessee’s property.  As used herein, “material” partial destruction will mean destruction to a portion of the Premises which will, in the reasonable opinion of the parties, require 12 months or more to substantially complete the repair.

42.Condemnation.  In the event the whole or any portion of the Premises shall be taken or condemned by any duly constituted authority or any condemnation suit is instituted, Lessee will peaceably surrender and deliver up to Lessor possession of the portion of the Premises so taken or condemned and Rent shall be appropriately abated.  In the event of a condemnation of a nonmaterial part of the Premises, such partial condemnation shall not annul or void this Lease.  In the event of a condemnation of such part or such form, shape or reduced area as to render the Premises not effectively usable for the purpose for which the property is demised, or in the event of a condemnation of all of said Premises, this Lease shall terminate as of the date when the condemning authority has become entitled to, and does take actual possession of the property condemned.  In the event of any condemnation, it is understood and agreed that the Lessor shall be entitled to, and shall receive and retain, any award made as compensation for or in respect of the land, buildings, improvements and fixtures actually taken and also any award for or in respect of damages sustained to the land or portion of the buildings or other improvements and fixtures not taken by reason of the severance there from of the land and/or portion of building actually taken.

43.Surrender Upon Termination.  At the expiration of the term or any extension thereof or any sooner termination of this Lease, Lessee shall quietly quit and

surrender the Premises to Lessor, without notice of any kind, notice being expressly waived, together with all improvements upon the Premises or belonging to Lessor, by whomsoever made, in good repair, order and condition, except for reasonable wear and tear.  Lessee’s obligation to observe and perform this covenant shall survive the expiration or sooner termination of Lessee’s rights hereunder.

44.Holding Over of Premises.  If upon termination of the Lease as herein provided, Lessee withholds possession of the Premises from Lessor from and after the date of such termination, the Lessor shall be entitled to monthly rent equal to 125% of the monthly rent specified in paragraph 4 of this Lease.  The provisions herein concerning Lessee’s increased liability in the event of wrongful withholding of the Premises from the Lessor shall not be deemed to be a waiver of any breach by Lessee of any covenant herein contained or of any of Lessor’s rights herein, and shall not prejudice any other remedy or right of action which the Lessor may have for collection of arrears of rent or for other or preceding breach of covenant by Lessee.  Any holding over after the expiration of the said term, or any extension or renewal thereof, with the written consent of the Lessor, shall be construed to be a tenancy from month to month only, and shall otherwise be on the same terms and conditions herein specified, so far as applicable.

45.Lessor’s Right to Assign and Transfer Security.  Lessor may, without consent of Lessee, sell, assign, mortgage, transfer or hypothecate all of its right, title and interest in this Lease, in the improvements constructed on the property demised hereunder, or its interest in the property of which said Premises is a portion, to the extent of its right, title, and interest therein.  In the event Lessor proposes to sell, assign, mortgage, transfer or hypothecate all or any portion of Lessor’s right, title or interest in this Lease and the prospective purchaser, assignee, mortgagee or other financial source requires verification of Lessee’s financial condition on the income and expense of Lessee’s obligations on the Premises, Lessee will furnish to Lessor, upon request, any and all financial statements or records reasonably necessary to verify such financial condition and income and expense.

46.Lessor’s Failure to Perform.  Lessor shall not be deemed to be in default in the performance of any obligation required by it under this Lease unless and until it has failed to perform such obligation within thirty (30) days after written notice by Lessee to Lessor, specifying wherein Lessor has failed to perform such obligation; provided that if the nature of Lessor’s obligation is such that more than thirty (30) days are required for its performance, Lessor shall not be in default if Lessor commences to cure the default within such thirty (30) day period and thereafter diligently prosecutes the same to completion.  If Lessor fails to cure any such default within the time periods so specified, Lessee may perform them on Lessor’s behalf and deduct the cost therefore from Rent and Additional Rent due hereunder.

47.Time of Essence.  Time and exact performance are of the essence of this Lease and all parts and paragraphs thereof.

48.Force Majeure.  In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, failure of power, restrictive governmental laws or regulations, riots, insurrection, war or other reason of a like nature not the fault of the party delayed in performing work or doing acts required under the terms of this Lease, then performance of such act shall be excused for the period of the delay and the period for the performance of such act shall be extended for a period equivalent to the period of such delay.  It is understood, however, that this provision shall not

operate to excuse Lessee from the prompt payment of rents or any other payments required by the terms of the Lease.

49.Notices.  Any notice from either party to the other shall be in writing and shall be given by delivering the same to such other party or by mailing the same by United States certified mail in an envelope with sufficient postage prepaid thereon addressed to such party at the addresses shown on page 1 of this Lease.  For the purpose of this paragraph, either party may change its address by notice to the other.

50.Waiver of Jury Trial and Counterclaims.  Lessor and Lessee hereby waive trial by jury in any action or proceeding brought by either of the parties hereto against the other party on any matters whatsoever arising out of or in any way connected with this Lease, the relationship of landlord and tenant, Lessee’s use or occupancy of the Premises, and/or any claim of injury or damage.  To facilitate the resolution of questions of possession, if Lessor commences any proceedings for summary possession, if for nonpayment of rent or for any other cause, Lessee will not interpose any counterclaim of whatever nature or description in any such proceedings.  Lessee shall have the right to assert such claims in a separate action or actions brought by Lessee.

51.All Agreements are Contained Herein; No Party Deemed Drafter.  This Lease contains all of the terms, covenants, conditions, stipulations, agreements and provisions agreed upon between the parties hereto in relation to the Premises and this Lease supersedes and cancels each and every other agreement, promise and/or negotiation between the parties with reference to the Premises.  Lessor and Lessee agree that neither party shall be deemed to be the drafter of this Lease and in the event this Lease is ever construed by a court of law, such court shall not construe this Lease against either party as the drafter of this Lease.

52.No Increase of Lessee’s Estate.  Lessee hereby waives and relinquishes any and all rights given to a lessee under Chapter 516 of the Hawaii Revised Statues (1968), as amended from time to time, or any similar law which may be enacted at any time during the term giving Lessor the right to expand Lessee’s leasehold estate under this Lease, which Lessee would not have under the terms of this Lease in the absence of such chapter or such law, it being understood and agreed by and between Lessor and Lessee that the provisions of such chapter or such law shall not apply to this Lease.  Any attempt by Lessee or any person claiming by or through Lessee to expand its estate under this Lease pursuant to such chapter or such law shall be a breach of this Lease.

53.Recordation.  This Lease shall not be recorded by Lessor or Lessee.  At the request of either party, a short form memorandum of this Lease sufficient to give notice of the leasehold estate hereby created shall be recorded in the Bureau of Conveyances of the State of Hawaii.  Lessor shall prepare the short form memorandum of the Lease and Lessee shall execute and deliver the same to Lessor within seven (7) days of tender thereof by Lessor.

54.Headings.  The paragraph headings are inserted merely for convenience and are not to be construed as part of this Lease or in any way affecting it.

55.Severability.  If any provision of this Lease shall be found or held to be illegal, such illegality shall not affect the remainder of this Lease, which shall remain in full force and effect.

56.Definitions.  Words in the singular or plural signify both the plural and singular; the use of any gender shall include all genders; and each of the terms “or” and “and” has the meaning of the other or both where the subject matters, sense and context require such construction.

57.Matters Upon Lease Termination.

a.Certain Prorations.

(i)Lease Termination Prorations.  All real property taxes and utility charges for the Premises shall be prorated for periods prior to the Commencement Date and following the Termination Date based on the actual number of days in the respective billing periods when such dates occur and the actual number of days elapsed.  On the Termination Date, Lessee shall deliver to Lessor cash in the amount of all deposits received by Lessee for the use of the Premises for periods following the Termination Date.  Lessee shall reimburse Lessor each month for any gift cards issued by MLP, Kapalua Land Company, Ltd. or Lessee at any time prior to termination of the Lease (including prior to commencement of the Lease) and accepted for redemption by Lessor within fifteen (15) days following the last day of the month in which such gift certificate is accepted for redemption by Lessor.  Any payments received by Lessor each month with respect to the use of the Premises for periods following the Commencement Date and prior to the Termination Date shall be paid by Lessor to Lessee within fifteen (15) days following the last day of the month in which the payment is received; provided, however, that Lessor may offset from any such payments the outstanding amount of any gift certificates accepted for redemption by Lessor.

(ii)Pro Shop Inventory.  Upon the termination of the Lease, the representatives of Lessor and Lessee shall prepare an inventory at the Golf Course (which inventory shall be binding on Lessor and Lessee) of (i) all of guests’ golf clubs and luggage checked or left in the care of the Golf Course by guests then or formerly at the Golf Course, (ii) parcels, laundry or other property of guests checked or left in the care of the Golf Course by guests then or formerly at the Golf Course, and (iii) all items contained in the Golf Course “lost and found”.  Lessor shall be responsible for all of such items listed in the inventory from and after the delivery of such items by Lessee to Lessor and shall indemnify, defend and hold Lessee harmless from and against any claim, liability, cost or expense (including reasonable attorneys’ fees) incurred by Lessee relating to the loss of or damage to such items listed in the inventory from and after their delivery to Lessor.  The provisions of this paragraph 57(a)(ii) shall survive termination of this Lease.

(iii)Equipment Leases.  Upon the Termination Date, Lessor shall have the right, but not the obligation, to the extent assignable, to receive an assignment of Lessee’s rights under any of the equipment leases for golf course maintenance equipment, golf carts and related accessories and other personal property then subject to lease upon Lessor’s written agreement to assume Lessee’s obligations under such equipment leases after the Termination Date.  Lessee shall provide Lessor with complete copies of each such equipment lease not less than 60 days prior to the Termination Date and Lessor shall notify Lessee in writing not less than 30 days prior to the Termination Date which, if any, of the equipment leases Lessor shall assume on the Termination Date and Lessee shall, to the extent assignable, assign those leases to Lessor

b.Revenues and Expenses.

(1)All other revenues and expenses for the Golf Course shall be allocated between Lessor and Lessee as provided herein, effective as of the end of the day night audit process, but no later than 5:00 a.m. Hawaiian Time, on the Termination Date (the “Cutoff Time”), determined in accordance with sound accounting principles, consistently applied.  Except as otherwise expressly provided for in this Lease, Lessee shall be entitled to all revenue and shall be responsible for all expenses for the period of time up to but not including the Cutoff Time, and Lessor shall be entitled to all revenue and be responsible for all expenses for the period of time from, after and including the Cutoff Time.

(2)Lessor shall promptly pay and reimburse Lessee for the following:  (i) petty cash funds and house banks on hand at the Golf Course as of the Cutoff Time; (ii) guest ledger balance as of the Cutoff Time; (iii) unexpired portions of prepaid expenses for all contracts assumed by Lessor, if any, to include (but not limited to) deposits, dues and memberships, maintenance agreements, advertising contracts, licensing agreements and software support agreements; (iv) prepaid amounts of taxes and assessments; (v) prepaid amounts of city, county and state permit and license fees (if transferable) allocable to the period following the Cutoff Time and any deposits assumed by Lessor in connection with any such permits and licenses; (vi) for all contracts that are assumed by Landlord upon termination, security deposits paid by Lessee to outside vendors and suppliers to the Golf Course (provided such security deposits remain on deposit for the benefit of Lessor); and (vii) if and when received by Lessor, uncollected rents due from the Restaurant Lease, subleases and other occupancy agreements allocable to the period before the Cutoff Time.

c.Reconciliation.  Except as otherwise provided herein, any revenue or expense amount that cannot be ascertained with certainty as of the Termination Date shall be prorated on the basis of the parties’ reasonable estimate of such amount, and shall be the subject of a final proration within ninety (90) days after Termination Date, or as soon thereafter as a precise amount can be ascertained.  Lessor shall promptly notify Seller when it becomes aware that any such actual amount has been ascertained.  Once all revenue and expense amounts have been ascertained, Lessor shall prepare a final proration statement which shall be subject to Lessee’s approval.  Upon Lessee’s acceptance and approval of any such final proration statement, such statement shall be conclusively deemed to be accurate and final and Lessee and Lessor shall each make any further adjustments required by such final proration statement.  Lessee shall be entitled to an accounting from Lessor with respect to any such revenue and expense amount, which is subject to allocation between Lessor and Lessee.

d.Customer Relation Data.  At Lease termination, Lessee shall retain one (1) set of customer relationship management (CRM) data for the Golf Course.

e.Pro-Shop Lease.  At Lease termination, provided such termination was not the result of an uncured breach or default of this Lease by Lessee, Lessor and Lessee shall execute the pro shop lease attached hereto as Exhibit C.

58.Miscellaneous.  Any agreement hereafter made shall be ineffective to change, modify, discharge or effect an abandonment of this Lease in whole or in part unless such agreement is in writing and signed by the party against whom enforcement of the change, modification, discharge or abandonment is sought.  The laws of the State of Hawaii shall govern the validity, performance and enforcement of this Lease.  Any action under or related to this Lease shall be brought in a court of competent jurisdiction in the State of Hawaii.  The

covenants and conditions herein contained shall, subject to the provisions as to assignment, apply to and bind and inure to the benefit of the respective successors and permitted assigns of the parties hereto.

[Remainder of page intentionally left blank.]

IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease effective the day and year first above written.

TY MANAGEMENT CORPORATION, a
Hawaii corporation
By		/s/ Tadashi Yanai
		Name: Tadashi Yanai
		Title: President
Lessor
KAPALUA PLANTATION GOLF LLC
By		Maui Land & Pineapple Company, Inc.,
		Its Sole Member
	By		/s/ Robert I. Webber
			Name: Robert I. Webber
			Title: President & CEO
	By		/s/ Ryan L. Churchill
			Name: Ryan L. Churchill
			Title: Senior Vice President
Lessee